WGA (Partial Work Disability) benefit of an employee later changed into an IVA (Fully Incapacitated Income Scheme) benefit

Year of publication

2011


Edition number

202


Reference

Central Appeals September 30th 2011, www.rechtspraak.nl, LJN: BT6623


Decision

According to the Central Appeals Court the full work incapacity of an employee with mental health problems was lasting. The UWV (Employee Insurance Agency), therefore, had to withdraw the WGA-benefit and to retroactively award an IVA-benefit.

An employee suffers from post traumatic stress disorder and major depressive disorder. He is granted a WGA-benefit, effective from 18th April 2006. At that time the employee is fully (80-100%) incapacitated. On January 15th 2008 the UWV decides to withdraw this benefit from April 1st 2008 onwards because the employee would then be less than 35% incapacitated. The employee disagrees and objects at the UWV. The UWV then decides that the WGA-benefit will be withdrawn at a later date (September 23rd 2008) because he at this later date he would be even less than 35% incapacitated. The employee still does not agree and appeals to the court. When the court declares the appeal unfounded, the employee appeals to the Central Appeals Court. The employee’s perseverance pays off, since he is more successful there. The Central Appeals Court has an expert make a report. For the UWV this report is a reason to declare the employee fully (80-100%), but not permanently incapacitated from September 23rd 2008. According to the UWV appeals insurance physician the diseases have not adequately been treated yet because the diagnoses were only recently made. Therefore, a final state can not be defined. This implies that the UWV again grants another (full) WGA benefit. But even this does not satisfy the employee. He states that he is fully and permanently incapacitated, and thus is eligible for an IVA benefit. The Central Appeals Court agrees and even-tually grants an IVA-benefit effective from September 23rd 2008.

Based on the report of the expert the Central Appeals Court involved, the Court concludes that in the long term the chance of recovery is minimal. Admittedly, targeted treatment only started in October 2008, but the Court considers that, in spite of this, no lasting, significant improvement needs to be expected. Results of previous psychiatric treatment were not achieved and the attending psychiatrist has serious doubts about the employee’s suitability for any form of psychotherapy. The prognosis is also unfavourable by the combination of the two disorders and the type of trauma (physical threat by somebody else) that lies behind the post-traumatic stress disorder. Finally, the Court considers as important that the expert is convinced that the employee is unable to benefit from psychotherapy.


Comments

Of all WIA-benefits, 80% are paid for total incapacity. In 75% of these cases the UWV awards a WGA-benefit, and in the other 25% an IVA-benefit. An IVA-benefit should be granted if the total incapacity is permanent. Permanent means that there is no chance of recovery any more, or no more than a slight probability of recovery. When deciding on the recovery chances of the employee, according to established case law of the Central Appeals Court, the UWV needs to concretely and properly justify what the long-term perspective of the incapacity is. In addition, the UWV insurance physician has to estimate the employee's future functional capabilities. Where the chance of recovery is based on a particular treatment, the UWV has to substantiate what possible outcome this treatment will give for the individual employee. Such substantiation is usually only given by the UWV in an appeal. In this case, however, it needed an appeal over an appeal to award an IVA-benefit.

By this statement the Central Court adds something to its earlier case laws by stating that the insurance physician only has a small scope for not assuming durability of incapacity if recovery is not expected in the first year, but afterwards it is expected. The Court points out that, by law, the UWV has to reassess employees who receive an IVA-benefit but still have a slight chance of recovery for the first subsequent five years.

For both employers and employees it is of great importance whether an IVA-benefit or a WGA-benefit is awarded. For the employee, the IVA-benefit is higher (75% of the daily wage) while in principle the benefit is granted till the age of 65. For this reason a "WGA-gap" is impossible.

For the employer the grant of an IVA-benefit is even more important, since the IVA-benefit does not cost him any money, whereas the WGA-benefit will be very costly for him for ten years. In this case the employee has done the dirty work for the employer, by objecting and lodging appeal over appeal. However, the employer had done better to do this himself. In that case he would not have depended on the perseverance of his (former) employee.



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