Employer Remains Responsible for Occupational Physician’s Advice

The UWV was allowed to hold the employer responsible for the correctness of the occupational physician's conclusion of an employee's capacity, even though the employer had no reason to doubt the UWV conclusion. Yet, the wage sanction the UWV had imposed on the employer for insufficient reintegration efforts, due to the incorrectly assessed capacity, had to be swept aside, since the UWV had insufficiently exercised restraint when assessing the occupational physician's conclusion.

An intermediary at a temporary employment agency had fallen ill for work. When, two years later, she was still incapacitated for work, she applied for a WIA benefit from the UWV.
The UWV then assessed the employer's reintegration efforts on the basis of the reintegration report the employee had submitted when she applied for the benefit. The UWV conclusion was that the employer had made insufficient reintegration efforts. For that reason, the UWV imposed a wage sanction on the employer. As a result, the employer had to continue to pay sick pay to the employee for an additional period of 52 weeks.
The reason for imposing the wage sanction was that the occupational physician had incorrectly assessed the employee's capacity. The occupational physician had concluded that the employee would be capacitated for work a maximum of two hours per day. As a result of focus on reintegration for two hours per day only, other reintegration efforts had been missed, according to the UWV labour expert.
The employer could not accept the imposed wage sanction. After the UWV had declared the employer's objection unfounded and after the Court had declared the employer's appeal unfounded, an appeal was lodged with the Central Appeals Tribunal. As the ground for appeal, the employer argued that the employer had no reason to doubt the correctness of the occupational physician’s conclusion and that therefore the incorrectness of the conclusion should not be at the employer’s expense and risk. The employer referred to a number of Court decisions that disagreed with the Central Appeals Tribunal’s case law, where the incorrectness of the occupational physician’s conclusion is at the employer’s expense and risk.
The Central Appeals Tribunal, however, was adamant to revoke its case law. The Tribunal pointed out that its position is based on legislative history, in which it is the legislator’s principle that the employer is responsible for the reintegration as well as for the quality of the work of the experts he/she engages. According to the Council, applying a different view would imply that the employer would be solely responsible for the diligence given in the preparation of the occupational physician's medical advice. After all, the employer does not have the employee's medical data and cannot check more than the diligence exercised in the development of the advice. Thus, the correctness of the occupational physician's medical advice could not be tested by the Court. In fact, the occupational physician’s advice would become leading. A legislative proposal to that effect, however, was recently withdrawn by the government.
The Central Appeals Tribunal also considered it of importance that the purpose of the wage sanction is to guarantee that the employee's reintegration is adequate.
Finally, the Central Board of Appeal held the opinion that using a different principle would be contrary to the system of wage sanctions, in which a wage sanction of 52 weeks is imposed in all cases, regardless of the nature of the employer's shortcomings, and in which the final duration of the wage sanction shall exclusively depend on the period the employer needs for rectification of the deficiencies in the reintegration.
Yet, the employer was successful with the appeal, and the wage sanction was swept aside after all. The Central Appeals Tribunal was of the opinion that the UWV physicians had not correctly assessed the occupational physician's medical assessment of the employee's capacity. The occupational physician is entitled to a certain professional margin of discretion in his assessments. When assessing the occupational physician's opinion, the UWV physicians should respect this margin. They also should take the context at the time of the assessment by the occupational physician into account as well as the facts and circumstances that were known at the time of the assessment by the occupational physician. Then, they should have assessed whether the occupational physician could reasonably have reached his conclusion of the employee's capacity. The mere fact that, subsequently, the UWV physicians reached a different conclusion is insufficient to impose a wage sanction. Since the UWV physicians had not substantiated their view that the employee could work for four hours per day, the decision on the UWV's objection was annulled.
The Central Appeals Tribunal annulled the UWV wage sanction decision.

In the above case, the employer was (successively) assisted by two lawyers of our firm. Of course, the recent withdrawal of the legislative proposal, supposed to make it impossible to impose a wage sanction for to an incorrect capacity assessment by the occupational physician, considerably reduced the chance to be proven right in this case. Fortunately for the employer, the wage sanction decision was annulled after all, because the UWV had applied an excessively strict yardstick when assessing the occupational physician’s capacity assessment. Already in 2022, the Central Appeals Tribunal had decided that the occupational physician is entitled to certain professional margin of discretion, which means that the UWV should have exercised restraint when it assessed the occupational physician's capacity assessment. (Incidentally, this also happened in a case in which the employer was assisted by a lawyer of our firm). But the Central Appeals Tribunal now even phrased it in clearer terms than in 2022. In this way, the Central Appeals Tribunal’s ruling is important for employers after all.