Disagreement between company doctor and insurance physician UWV (Employee Insurance Agency) on employee’s disability

Year of publication

2011


Edition number

193


Reference

Sub-district Court Leeuwarden, February 15th 2011, www.rechtspraak.nl, ljn: BP6842


Decision

An educational institution has an employee who, in March 2009, after a dispute with his man-ager has gone to his family doctor, a psychiatrist and a psychologist and who, in this context, reports ill.

Originally, the employee held the job of assistant financial administration. As a result of this conflict, he was already transferred, while retaining salary, to the less rewarding role of assistant teacher. After this the employee has refused suitable work, for which he received official notice twice. The UWV judged the work by expert opinion appropriate. On February 16th 2010, the company doctor declared the employee suitable for his own work. For the school this was the reason to stop the salary by March 1st 2010, after which the employee resumed work not until mid-May 2010 has. One month later he reported ill again.

Regarding the new sick reporting the company doctor decides on July 1st 2010 that the em-ployee is totally disabled with significant limitations in personal and social functioning. Full recovery for own work, the company doctor estimates, will take 3-6 months. On September 23rd 2010 another company doctor, however, declares the employee fit to resume work. This is reason for the educational institution to inform the employee by letter of 13th October 2010 to resume his work the next day. Failing this, his salary will be discontinued. The employee does not resume his duties as such, but instead asks the UWV an expert opinion (second opinion) on November 8th. On November 8th 2010 the UWV insurance physician judges that the worker was still incapacitated on September 23rd 2010. The employee then applies for the adoption of interim measures at the Sub-district’s Court, in which he claims continued sick pay. The educational institution invokes as a defence that the company doctor, contrary to the UWV insurance physician has relied on a detailed record, and that the insurance physician has omitted to consult the company doctor.

The Sub-district Court adopts the opinion that the insurance physician’s decision cannot simply be disregarded because it deviates from the company doctor’s opinion, since that would make the application for an expert opinion, which aims to establish an independent and impartial opinion, pointless. Deviation from the company doctor’s opinion (who, as the Sub-district Court states, in accordance within the meaning of the law is not an expert), is only possible, according to the Sub-district Court if there are additional facts and circumstances. According to the court in this case such facts and circumstances are out of the question. The Sub-district Court points out that the September 23rd 2010 decision of the second company doctor, that there are no longer relevant medical restrictions to work, are not explained or justified. It is unclear (as stipulated by the employer but disputed by the employee), if the com-pany doctor, prior to his decision of September 23rd 2010 consulted with his predecessor. According to the Sub-district Court the school should not have based such a drastic measure as the refusal to pay wages on the second company doctor’s opinion after his predecessor had stated that full recovery would take 3-6 months. The opinion of the UWV insurance physician is aligned with the view of the first company doctor. The Sub-district Court therefore supports the opinion of the UWV insurance physician. Since this view implies that on September 23rd 2010 the employee was still medically incapable of work, continued sick pay finds for the plaintiff.


Comments

In disputes about sick pay judges often have to decide on the medical question whether an employee is incapacitated by illness or not. Of course, judges generally do not have the medical expertise of a company doctor or an insurance physician. Nevertheless, in the event of a disagreement between the company doctor and the UWV insurance physician, they have to have a final say on whether or not an employee is incapacitated by illness. If necessary, the court has the opportunity to seek expert advice. Since disputes about continued sick pay are usually urgent, they are often submitted to the court in interlocutory proceedings, where there is no time and space for an expert advice. There is nothing else the judge can do but to inves-tigating the reasonable care of the medical examination and the argumentation for the decision, therefore, not the content of the opinion, but the procedure by which the opinion was established. That is what the Sub-district Court also did in this case.

It is striking that in advance the Court seems to grant more value to the decision of the UWV insurance physician than to the opinion of the company doctor. According to the Sub-district Court, the law has designated the insurance physician as an expert and not the company doc-tor. In article 32 of the Wet SUWI (Work and Income Implementation Structure Act) the UWV is responsible for opening an medical examination on whether an employee is disabled or not, and Article 7:629 a of the Civil Code states indeed that the examination should be conducted by a UWV expert. But that does not imply that the UWV insurance physician is more know-ledgeable than the company doctor. The expertise of both should reflect in the meticulousness with which they conducted their examinations, and the argumentation of their opinions, where, additionally, the company doctor usually may claim that he has monitored the employee for a much longer period.

The Sub-district Court also seems to assume that only the insurance physician is independent and impartial. This is a misconception: in Article 13 paragraph 6 of the Labour Conditions Act the law states that the company doctor is autonomous and independent.

Misconceptions like this make that judges tend to attach more value to the decisions of the insurance physician than to those of the company doctor. This is wrong. If need be, employers have to fight these misconceptions in advance with solid-based arguments.



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