Assessment of permanency of incapacity to work should be customized for the individual employee

Year of publication

2009


Edition number

165


Reference

Central Appeals Tribunal, 8 April 2009, www.rechtspraak.nl, ljn: BI1011


Decision

An employee working as a welder, who was absent due to lung complaints on 29 January 2009, was refused WIA [Work and Income Capacity to Work Act] benefits by the UWV, in its decision of 7 March 2006, because the employee allegedly was less than 35% incapacitated to work. This decision was revoked after a complaint, and the degree of incapacity to work was determined at 80-100%.

The employee was then granted WGA [Scheme for Resumption of Work for People Partially Incapacitated to Work] benefits. However, the employee is of the opinion that he should receive IVA [Income for People Fully Incapacitated to Work] benefits, because there is a permanent incapacity to work. The court of Almelo finds that this appeal is well-founded, but the UWV appeals to the Central Appeals Tribunal. The UWV insurance doctor handling complaints refers to a guideline for company medical officers that rehabilitation from lung diseases is possible, in which case the employee could carry out more work. However, the Central Appeals Tribunal rules that, unjustly, the contents of these guidelines have not become clear and that, also unjustly, the UWV has failed to state why rehabilitation from lung diseases could be an available treatment for the employee concerned, possibly leading to improvement. The lung specialist treating the employee has stated earlier that depression made the employee unsuitable for lung rehabilitation. The UWV had responded inadequately to that.


Comments

An employee examined by the UWV after 104 weeks of incapacity to work for WIA benefits, who is found completely incapacitated to work after that examination, can receive one of two types of WIA benefits. IVA benefits are granted if the employee is completely and permanently incapacitated to work. WGA benefits are granted if the employee is completely, but not per-manently, incapacitated to work. The difference for the employee is that IVA benefits are higher than WGA benefits (75% instead of 70% of the daily wages), while WGA benefits have all types of reintegration incentives if that incapacity to work is later reduced to less than 80%. The difference is even larger for the employer. The employer has to pay WGA benefits for the first ten years, if the employer is self-insured, and if the employer is not self-insured, the first ten years of WGA benefits, two years after payment of the benefits to the increased assessment of the differentiated WGA contribution. Due to this increase in contribution, a larger employer pays some three/quarters of the benefits himself. The IVA benefits imposes no financial burdens at all on the employer.

Permanent incapacity (therefore leading IVA benefits) occurs if there is only a slight chance of recovery. Therefore the UWV has to assess the chance of recovery of the employee, but it has not received clear guidelines from the legislator for this. This means that the UWV is now attempting, by inviting jurisprudence, to receive a clear answer to the question of what consti-tutes permanent incapacity. 70% of all WIA benefits are for complete incapacity to work. Only 30% of these lead to IVA benefits, and in the other 70% of the cases WGA benefits are granted, although it seems unlikely after 104 weeks of illness and reintegration attempts, 70% of employees have more than a slight chance of recovery. The ruling of the Central Appeals Tribunal therefore underlines that appealing decisions to grant WGA benefits for complete incapacity to work is worthwhile, to assess the chances of recovery at that time.



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