by Katherine McDonald, Solicitor
It is well established that Accident Compensation Corporation (ACC) law and the intricate process in which it operates can be a very difficult system for employers and claimants to navigate. Consequently when an employee is off work with an ACC-covered injury, an employer can find themselves a bit lost.
Given that many Employers need help covering the basics here are some commonly asked questions regarding ACC that could make your life easier.
Who pays the first week of Weekly Compensation?
If an employee is injured at work the Accident Compensation Act 2001 makes employers pay the employee for the first week of weekly compensation.
A work related injury includes an injury suffered while the employee is at any place for the purposes of their employment. ACC’s liability to pay weekly compensation will then kick in after the first week of incapacity.
How much do I pay?
The amount the employer has to pay to the employee is 80% of the amount of earnings lost by the employee during the first week of incapacity.
If the employee has multiple jobs this will include paying these lost earnings from week one also. The remaining 20% of earnings that an employee has lost can be topped up with the employees sick leave or annual leave if agreed by both parties.
Please note the employer cannot require the employee to take sick leave during that first week unless it is the 20% top up. (We see this happen a lot.)
Non – Work Injuries
If an employee’s injury is not work related, the Employer is not liable to pay their first week of compensation. As ACC weekly compensation will kick in seven days after the date of first incapacity, an employee can use their sick leave entitlements under the Holidays Act 2003. If an employee is not entitled to paid sick leave the employer can (but doesn’t have to) allow them to use their annual leave entitlements if they have any.
Do I need to see Medical Evidence?
Before paying the first week’s compensation, the employer should require the employee to provide a medical certificate from a medical practitioner. If this is a work injury the employer should pay for this consultation. The medical certificate should set out approximately how long the employee will be off work. This may say that they are unfit for any duties, or alternatively it may state that they are fit for selected duties and should note the restrictions such as no heavy lifting, no standing etc.
The employer then has an idea of what is going on and can plan better internally for the absence or changes required in the workplace.
What are my obligations as an Employer when dealing with injured Employees?
Employers are required under the Act to help rehabilitate injured employees, regardless of whether or not they were injured at work. The best place to start is to look at what the medical certificate from the treating practitioner states. If they are deemed to be fully unfit this means they are unable to perform any work duties at all. During this time it is best for an employer to maintain contact with an employee once a week to keep up to date on their progress.
Once the medical certificate states they are fit for selected duties then an employer can see if there are jobs they can do in the workplace in keeping with the conditions of the medical certificate. For example if employee is doing an administrative role with a broken leg it may mean they can come back to work with assisted equipment and graduated hours over 6 weeks. Alternatively if they are a builder with a broken ankle there may not be any light duties available so they will have to stay away from work until they have a full clearance.
The best way forward is for an ACC Case Manager to organise a worksite assessment and return to work plan, so all parties involved are aware of the expectations and what the return to work plan is. If a Case Manager has not contacted you yet just make a phone call to them and ask for one to be made available. Furthermore if the medical incapacity becomes a complicated and elongated process, (which can happen for various reasons), that eventuates in an employee not being able to return to work, it will allow an employer to demonstrate they have acted fair and reasonably, and that they have attempted to maintain a good relationship with the employee and tried to provide assistance as best as they can.
Do I need to have a Medical Clearance before my Employee starts work?
If an employee is fit to return to full duties they must obtain a full medical clearance from their GP or specialist. This is non-negotiable. Once an Employer has received a copy of this they can then be assured their employee can return to pre-injury hours and pre-injury duties. It is best practice to always ensure you have a physical copy of this.
Alternatively if an employee does not think they are fit for full duties it is up to them to discuss this with their medical provider and if appropriate to let their employer know why.
This can be frustrating for an employer especially if an employee seems to be delaying the process, not doing their rehab activities or is seen playing sport or out partying. The key here is to discuss the concerns with your employee and ACC case manager directly so a better eye can be kept on their progress. If issues with the injured employee are starting to test the actual employment relationship, a good option would be to seek advice from an employment lawyer.
How does an Employer review a decision that an injury is a Work Injury?
An employer will often receive an official ACC decision stating an employee’s injury is deemed a ’ workplace injury’ which can have negative ramifications such as the business’s claims history affecting its levies. If it is a genuine workplace injury then that is obviously fine, but quite often this is not the case. For example an employee may have an original and on-going injury which predates their employment or has happened out of work. A small incident at work may then exacerbate or aggravate a pre-existing injury.
The employee then sees a medical provider and the new claim is lodged as a work injury when it could be argued it is not.
An employer should be aware they have the right to review such a decision as to whether an employee/claimant’s injury is classified as a work-related injury. Once the decision letter is received by the employer, a review can be lodged with ACC within three months of the decision being made. ACC will then advise the employer of the review process, what further information may be required, and the timeframes involved.