Salary Freeze for Refusing Medical Expert Examination was Unjustly Imposed

The Sub-district Court obliged an employer who, advised by the occupational physician, had required a sick employee to cooperate in a medical expert examination and who had refused to pay the sick pay when the employee had failed to do so, to nevertheless continue to pay the wages, because the refusal should not be blamed to the employee, since it the resulted from her illness.

A female employee on the payroll of the State, who also worked for another legal entity governed by public law, had become labour incapacitated as of July 2018. After the labour incapacity had lasted for 104 weeks and after the employee had applied for a WIA benefit, the UWV had imposed a wage penalty on the legal entity governed by public law for failure to make sufficient reintegration efforts. As a result, the employer had to continue the sick payment for another period of 52 weeks. The employer then tried to repair the shortcomings in its reintegration process as quickly as possible, so as to apply for a reduction of the wage penalty. In this context, the occupational physician had, already in October 2020, advised to have a psychological expert examination carried out. The employee, however, had lodged a complaint to the occupational health and safety service then and had asked for another occupational physician. But, after her request had been granted, the new occupational physician also advised to have a psychological expert examination carried out.

Then, in November 2020, the employee requested the UWV for an expert opinion on the employer's reintegration efforts, but the UWV announced that it would not process the application, since the employer's reintegration efforts had already been assessed under the wage penalty. The employee then informed the employer that she did not endorse the advice to have the expert examination. The employer responded with a written warning and the announcement that payment of her wages would be discontinued if the employee did not cooperate with the expert examination. The employee then stated that participating in the expert examination would be too burdensome for her and that the occupational physician already had all the relevant information from previous treatments. She also declared that she was willing to authorize the occupational physician to request information from her latest practitioner. She also pointed out that the employer had announced that the current parallel track would terminate in February 2021 and that it was the employer’s intention to request a reduction of the wage penalty then.
In December 2020, the employer discontinued wage payment to the employee.

When, once again, the employee applied for an expert opinion from the UWV, this time on her own reintegration efforts, the UWV, once again, did not grant the expert opinion, be it this time because “no compelling opinion could be given why the intervention that the occupational physician had advised had not been complied with”. In the meantime, the occupational physician had already advised that the wage freeze should no longer be maintained, because the financial worries it would cause might eventually lead to an increase of the disabilities.
When the employer applied for a reduction of the wage sanction, the UWV insurance doctor decided that, for medical reasons, the employee should not be blamed for her failure to cooperate with the expert examination. According to the insurance doctor, there were “evident problems with regard to criticism and judgment” and “absence of awareness of and/or insight into the disease”.
The employee then claimed payment of het outstanding wages, so that the Sub-district Court had to rule on the case.
The Subdistrict Court noted that it was apparent from the position of the UWV that the employee should not be blamed for failure to cooperate with the expert examination because it was a consequence of her illness. The Sub-district Court rejected the employer's argument that it was not until in retrospect that it had become apparent and that he had had good reasons to impose a pay freeze on the basis of the advice of two occupational physicians, stating that, despite the advice of the occupational physicians, the employer himself is responsible for imposing or not imposing a wage freeze. The Sub-district Court also agreed with the employee's claim that participating in the expert examination would be too heavy a burden for her in relation to the remaining duration of the reintegration process, which would terminate with the end of the parallel track in February 2021. Only two months would have remained after the examination and the Sub-district Court did not consider it plausible that major reintegration steps would have been made in that period. The Sub-district Court also found that the occupational physician could have obtained the desired information by requesting it from the practitioners as well. Thus, it was not a reasonable prescription to initiate an expert examination and, therefore, the wage freeze was imposed on the wrong grounds. The employer was ordered to pay the outstanding wages.

If employees resist, reintegration processes may become very complicated. The above case gives a good example. The attitude of the UWV has certainly not been very helpful.
Twice the UWV refused to provide an expert opinion, even though it is a legal task of the UWV. But afterwards, it was telling that the advice of two occupational physicians to have an expert examination carried out was incorrect. Unfortunately, it is not clear from the judgment of the Sub-district Court what investigation it was that justified the UWV to reach this conclusion.
If it were correct that the refusal to cooperate with the expert examination was a consequence of the employee's illness and, for that reason, should not be attributed to the employee, the employee's wage claim was rightly granted, but the question remains why the insurance doctor thinks so, whereas two occupational physicians apparently earlier had a different opinion.
But also the Sub-district Court’s judgment may meet some criticism. Its statement that the reintegration ends when the parallel track expires, overlooks the fact that the UWV - or the employer if it is a self-insurer - has to continue the reintegration if the employee is granted a WGA-benefit.