Employee ski accident: recovering continued pay from the liable party

Continued pay for salaried employees is governed in particular by § 8 AngG, and § 2 EFZG applies to employees covered by the Continued Remuneration Act. The employee must be unable to work because of illness or an accident after starting employment and must not have caused that inability intentionally or through gross negligence. These conditions can be satisfied by a recreational accident. An assessment of the particular conduct is required for gross negligence; the question is not resolved by taking part in skiing alone.

Among other things, the statutory entitlement period depends on the length of service and the sick leave entitlement already used during the working year. A collective agreement or works agreement switching to the calendar year must also be considered. For salaried employees, § 8 Abs. 8 AngG additionally requires prompt notification and proof on request. The reason why pay was owed and the amount for each payment period must be established. Purely voluntary additional payments cannot simply be treated as equivalent to statutory recourse.

The duty to continue remuneration is created by § 8 AngG. Through the analogous application of § 1358 ABGB and § 67 VersVG, Supreme Court case law explains the transfer of the damages claim. In the legal principle RS0043287, continued pay is classified as a transfer of the loss, such that paying the employee during sick leave does not release the person responsible for the accident from liability. When continued pay is made, the corresponding claim of the injured employee passes to the employer.

Compensation for the employee loss shifted to them is therefore sought by the employer. Lost business revenue, the cost of replacement staff, and organisational difficulties are separate items and are not automatically covered by this transfer by operation of law. The employer holds the right to pursue the transferred claim. That same wage loss cannot then be claimed again by the employee in their own name. Duplicate or incorrectly allocated claims are prevented by coordinating both schedules of loss.

Another person's liability for the accident injury and the associated loss of earnings is required for recourse. In a collision, the accident sequence, breach of care, and connection to the injury must be established. Where an alleged slope safety defect is involved, a separate assessment is required for the operator's responsibility. A claim against a third party is not created by a fall followed by sick leave alone.

To the extent that it covers the period concerned, a medical certificate documents inability to work. For liability, an accident report, details of the parties and witnesses, and available photographs may constitute additional evidence. The link between the injury and the particular occupational duties must also be understandable. Two questions of fault must be kept separate: minor negligence can leave the pay entitlement intact, whereas contributory negligence limits the damages claim against the person responsible for the accident.

Under RS0043287, continued gross pay and the employer's social insurance contributions are included in employer recourse. The claim is therefore not limited to the net amount received by the employee. Allocation of each item to the accident-related absence and your payment obligation remains required. Other levies, supplements, or business expenses must not be added without review as an undifferentiated payroll overhead.

A schedule by period must be prepared showing inability to work, full or half continued pay, gross remuneration, employer contributions, and payment date. The same item should be traced by the payroll account, payslip, and payment record. Special payments or variable remuneration belong in the calculation only insofar as the specific duty to continue them and their allocation have been established. Compensation already received and partial payments must be disclosed and accounted for correctly in the final demand.

The transferred claim is also affected by the employee's contributory negligence under § 1304 ABGB. Partial pay and sickness benefit may overlap during a longer inability to work. This requires a period-by-period calculation of the available damages fund: the amount remaining after liability limits and transfers of claims. In 2 Ob 37/25t of 3 June 2025, the Supreme Court explained that transferred social insurance claims must be taken into account first.

In allocating the remaining fund limited by contributory negligence, priority was given by the Supreme Court to the employer's claim for reimbursement of continued pay over the employee's remaining loss-of-earnings claim. The decision concerned a road accident, and its general rules on continued pay are relevant to employer recourse following a ski accident. Full reimbursement of every payment is not guaranteed by this priority. Liability, the available fund, and the substantive and temporal allocation of benefits remain decisive.

The legal assessment is aided by two connected sets of documents. The sequence of events, parties, witnesses, and medically supported absence periods are contained in the accident file. The basis of your payment duty, entitlement periods already used, payslips, and payment records are contained in the payroll file. Record what compensation the employee, your business, or a social insurance institution has already received or claimed. This establishes who can pursue each claim.

From knowledge of the loss and the person responsible, a three-year limitation period generally runs under § 1489 ABGB. Separate review is required for the specific limitation period of the transferred claim; do not rely on every wage payment starting a new period. Before settlement, the claim holders, covered periods, partial payments and unresolved future losses must be clearly allocated. Mag. Christopher Angerer assesses the basis for recourse, the evidence and enforcement of the transferred claim.