Employee Refused to Authorize Occupational Physician to Request Information from Treating Physicians

Year of publication

2020


Year of publication

380


Reference

District Court Midden-Nederland, 24 March 2020, ECLI:NL:RBMNE:2020:1568


Decision

The UWV had rightly decided to terminate the Sickness Benefit of an employee who had refused to authorize the self-insurer's occupational physician to request information from her treating physicians and practitioners.

On 30 December 2016, a female employee had to give up working due to psychological complaints. Her employment contract ended on March 8, 2017. Since she was still incapacitated at that time, she was entitled to a sickness benefit. The former employer was a self-insurer for the Sickness Benefits Act and thus the person who paid the benefit.
For this reason, the former employee’s sick leave was supervised by the former employer’s occupational physician. Later, when this physician wanted to request information from the practitioners, he asked the employee to authorize him to do so. The employee refused to do so, however.
Then, the UWV, acting on a proposal of the employer, who, as the self-insurer, had to prepare the decisions of the UWV on the Sickness Benefit as well, decided to suspend the Sickness Benefit and, subsequently, to terminate it.
The employee disagreed with these decisions and objected to the UWV. The UWV declared her objection unfounded. The employee appealed to the Court, however. She argued that she was put under pressure by the occupational physician to sign the authorization and that the occupational physician had insufficiently taken her psychological complaints into account. She also considered it unnecessary to request medical information from the practitioners, because she had already provided all information necessary to assess her incapacity for work.
The Court had a different view and considered that everyone who is entitled to a Sickness Benefit should cooperate in an investigation that the UWV has to conduct in order to determine the existence of incapacity and the labour capacity. In the case of the employee the occupational physician considered it necessary to have access to medical information from the practitioners and, therefore, the employee should have signed an authorization to this effect upon his request. By failing to do so, she had unsatisfactorily cooperated in the UWV investigation. The employee’s arguments did not preclude this, according to the Court. Besides, the employee had also sufficiently been warned about the consequences of failing to sign the authorization.

The Court did see a shortcoming in the UWV decision, however, concerning the correct representation of the legal basis, used for the decision to suspend the Sickness Benefit. According to the Court, the UWV had presented this basis too generally by referring to a section of the law only, without mentioning the relevant part of the legal article that entitled the UWV to terminating the Sickness Benefit. At the hearing of the Court, the UWV then indicated that it relied on an article stipulating that an employee is obliged to cooperate with a medical examination and stipulating that the entitlement to a Sickness Benefit should be disregarded if the entitlement to that benefit cannot be determined in the absence of the employee’s cooperation in this examination. According to the Court, however, this article only applies on application for the Sickness Benefit. The Court also held the opinion that the decision could be based on an article that stipulates that a decision to grant a sickness benefit can be revised or withdrawn if it is not possible to establish that the entitlement to the sickness benefit still exists, because the employee does not comply with a number of specifically listed obligations under the Sickness Benefits Act.
The Court held the opinion that the employee had failed to meet one of these obligations because the medical examination could not take place due to actions on her behalf.


Comments

The Sickness Benefits Act and the WIA (Work an Income according to Labour Capacity Act) have many provisions that oblige the insured employee to provide information and to cooperate with the inspection, but it is striking to conclude that there is no provision that obliges the employee to authorize the UWV insurance physician (in this case: the self-insurer’s occupational physician) to request information from the practitioners. The Court tried to improvise a way round it, but it is actually not in accordance with the text of the law.
It is also striking to conclude that the Court did not precisely indicate on which part of the legal provision that was mentioned by the Court, the Court’s view was based.
The text “the medical examination could not take place due to actions on behalf of the insured”, that the Court cited, comes from a provision that refers to an expert examination; not to the examination by the insurance physician or the occupational physician.
Incidentally, occupational physicians and insurance physicians can oblige the employee to cooperate in an expert examination. For the employee this is much more burdensome and usually the employee will be willing to sign an authorization once the insurance or occupational physicians indicate that the alternative would be an expert examination. Even if the law were to be interpreted more strictly than the Court did, this method could work in practice. Which does not alter the fact that it is desirable for the legislator to amend the law so as to provide for a legal obligation to authorize the insurance physician or the occupational physician to request medical information from practitioners upon their request.



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