Application accelerated waiting period wrongfully rejected

Year of publication

2010


Edition number

189


Reference

Administrative Law Sector of the Court of The Hague 17 November 2010, www.rechtspraak.nl, ljn: BO4616


Decision

On 30 May 2008, an employee is unfit for her work as packer, due to lung complaints. Because the employee thinks she is permanently and fully incapacitated to work, she applies for WIA benefits (IVA benefits) with an accelerated waiting period. A statement by the company doctor and by the lung specialist are attached to the application. However, the UWV rejects the claim. The employer (who has an interest because an accelerated granting of IVA benefits can be settled by the employer with the continued wages) objects to that decision, but the UWV dismisses the objection. The employer then appeals to the court.

The UWV’s rejection is based on the fact that the company doctor submitted information from a lung specialist who is no longer treating the employee, and there is no recent statement from the lung specialist who is currently treating the employee. This makes it unclear which condition the employee has and whether there is chance of recovery (Note: If there is a chance of recovery, there is no permanency of the full incapacity to work and therefore no right to accelerated granting of IVA benefits). In the objection, a statement from the currently treating lung specialist is submitted as yet, but, according to the UWV, this is too late. The fact that it has by now become clear that the employee is suffering from a serious illness, could, according to the UWV, only be established afterwards.

In the appeal, the employer states that the UWV itself has an obligation to examine and that therefore the UWV itself should have conducted a medical examination and should have requested information from the treating doctors itself.

The court finds that the law only stipulates submission of a statement from the company doctor, showing the employee’s medical situation and the prospects. This statement has to be drawn up based on data concerning the medical specialist examinations or treatments that the employee has undergone, unless this cannot be demanded from the company doctor in all reasonableness. Because the statement by the company doctor included the established diagnosis, an explanation of the progressive character of the disease, and the possibilities for recovery, and because the company also based this on a statement of the previously treating lung specialist, the application complied with the legal requirements. This is not negated by the fact that the lung specialist concerned is no longer treating the employee. Also, the UWV failed to give the employer, in his objection, the opportunity to submit further information and instead failed to take the statement of the treating lung specialist, submitted as yet, into account. The court also blames the UWV for not making any attempts to request information on the employee’s medical conditions from the treating doctors. Demanding a written and recent statement from the treating medical specialist cannot be traced in the law. The appeal is therefore granted and he UWV has to take a new decision about the employer’s objection.


Comments

In this case, the UWV once again shows its worst side, by taking an extremely formal position, not based in law. Nevertheless, employers and employees are advised to substantiate the application for accelerated granting of IVA benefits (that can only be filed once) as well as they can, on every occasion.



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