UWV Pre-dates the First Day of Labour Incapacity

Year of publication

2017


Edition number

286


Reference

Central Appeals Tribunal, April 5, 2017, www.rechtspraak.nl, ECLI:NL:CRVB:2017:1310


Decision

The UWV had decided that an employee, who had reported ill a few months after his employment contract was terminated, had fallen ill within four weeks after the employment with the employer. According to the Central Appeal Tribunal, however, the UWV had insufficiently substantiated this decision.

The employee was employed by the employer on May 1, 2013. The probationary period was invoked, however, to already terminate the employment contract on 1 June 2013 because it was not possible to obtain the required certificate of good conduct for the employee.

On September 24, 2013, the employee reported ill. At the time he received a WW (unemployment) benefit. On January 31, 2014, the employee was examined by a UWV medical advisor. He not only declared him recovered as per February 17, 2014 but he also stated that 19 June 2013 had been the first day of his labour incapacity. The reason for this decision was that on that particular day the employee was hospitalised in a private clinic for treatment of cocaine addiction. Since that date fell within four weeks of the employment contract with the employer and, therefore, within the period when the sickness benefit insurance still applied, the employee was granted a sickness benefit.

The employer raised objections against this decision, but the UWV declared the objection unfounded. In appeal, the Court ruled that the mere fact that the employee had been hospitalised in a drug rehabilitation centre was insufficient reason to consider the employee incapacitated. The UWV should have checked whether there was a need for the admission and should have collected information about the employee's medical condition at the time of admission. The Court gave the UWV the opportunity to rectify this shortcoming in the substantiation for the decision on the objection. The UWV, however, failed to do so within the stipulated term. Therefore, the Court nullified the UWV decision on the objection and ordered the UWV to come up with a new decision on the objection, taking the Court’s judgement into account. The UWV acquiesced with this decision.

Subsequently, the UWV made a new decision on the employer's objection, again declaring the objection unfounded. The UWV stated that it had tried to obtain new information from the employee, but that the employee had not responded and that his curator had declared that no further medical information could be provided. (Apparently the employee had been declared bankrupt or placed under administration or guardianship in the meantime.)

Of course, the employer did not settle for this new decision, and a new appeal before the Court was lodged. The Court also granted this appeal, arguing that the approval of the sickness benefit was still only based on the admission to the drug rehabilitation centre. This time the UWV did not acquiesce with the Court’s decision. Higher appeal to the Central Appeals Tribunal was lodged. Since defects and shortcomings resulted from the addiction, the UWV believed that there was sufficient evidence that there was a need for admission to the drug rehabilitation centre.

But also the Central Appeals Tribunal rules against the UWV. The Central Appeals Tribunal points out that the UWV acquiesced with the first decision of the Court and that, for this reason, it should be taken as a given that the UWV had to assess the need for admission to the drug rehabilitation centre to adequately substantiate its decision on the objection. The Tribunal even adds that, under the specific circumstances of the case, in its opinion, indeed further investigation into the need for admission would have been necessary before the first day of the labour incapacity could be changed. The Central Appeals Tribunal points out that the employee was not ill at the time of employment termination, that there is no evidence that the employee was a frequent absentee during the employment, that the employee had been addicted for a long time but that, nevertheless, he had worked in several shorter and longer employments and that, according to information from the municipality (under whose legislation the employee also received a social assistance benefit), on 19 June 2013, he had already been "clean" for a minimum of 26 weeks and was applying for jobs.

Furthermore, there was no referral or needs assessment for the admission and the health insurance also did not reimburse the admission. And finally, there was no medical information about the reasons for admission and about the term of treatment. The fact that hospitalisation in the drug rehabilitation centre was the only or most appropriate treatment option at the time, according to the Central Board of Appeal had not been established. That is why, according to the Central Appeals Tribunal, it was not allowed to pre-date the first day of labour incapacity to 19 June 2013.


Comments

If the first day of labour incapacity falls within the employment contract with the employer, the costs of the sickness benefit and any later payable WGA (Partial Work Disability)-benefit will be borne by the employer (except for small employers). This also applies if the first day of incapacity falls within the first four weeks after termination of the employment contract, but only if the employee is not already insured for the Sickness Benefit Act, due to employment elsewhere or because of a WW (unemployment)-benefit. In this particular case, the employee had been granted a WW-benefit, so the sickness benefit would not be on account of the employer. The reason why the employer objected to pre-dating the first day of incapacity to a date within the first four weeks after the end of the employment contract is not really clear.

Case law of the Central Appeals Tribunal shows that addiction is not considered to be a disease, but that addiction and its social consequences may lead to the adoption of objective medical constraints hindering the performance of labour. Usually, this means that an admission due to addiction leads to the award of a sickness benefit. In this case, however, there was a special circumstance because the need for the admission was questioned. Therefore, the UWV should have asked for medical information to substantiate this need. However, the UWV had postponed this for so long that, apparently, it was no longer possible to obtain this substantiation. But, according to the Central Appeals Tribunal, that is a circumstance under the UWV’s own account and risk.

Discussions between the UWV and employers on the first day of incapacity more often take place, because the first twelve years of labour incapacity of a former employee are only on the employer’s account if the first day of labour incapacity falls within the employment contract with the employer (or within the first four weeks thereafter in case the employee has no work elsewhere or in case he receives a WW benefit). Usually, for the purpose of determining the first day of labour incapacity, the day where the availability for work stopped is assumed, but under special circumstances, an earlier day may be considered as the first day of labour incapacity.

It is striking that the UWV relatively easily adopts an earlier first day of incapacity when the employee has reported sick after the end of the employment contract and when this pre-dating of the first day of incapacity implies that it still falls under the employment contract with the employer, or four weeks thereafter, whereas the UWV is hardly ever prepared to assume that an employee who fell ill shortly after entering into the employment contract with the employer was already incapacitated before he was employed.



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