The Self-Insured Employer Could Reduce Former Employee’s WGA- Benefit for Non-Cooperation with the Reintegration

An employer who was a self-insurer for the WGA had rightly decided to reduce an employee's WGA benefit by 25% for four months, since the employee refused to remain in contact with an employee of the insurance company by which the progress of the incapacity would be monitored.

The UWV had granted a WGA benefit to an employee. Since the employer was a self-insurer for the WGA, it was the employer who had to pay the WGA benefit. The employer had insured the risk of payment of this benefit with an insurance company. When an employee of the insurance company contacted the employee, the employee first asked for an authorization to prove that the insurance company employee acted on behalf of the employer.
But also after the employer had sent the authorization to the employee, the employee did not comply with the insurance company employee’s repeated requests to contact him and to complete a questionnaire. Even when the employer had announced that a measure in the form of a 25% reduction of the WGA benefit would be imposed on the employee if he would continue refusing to stay in contact with the insurance company employee, the employee persisted in his attitude.
Then the employer decided to impose a measure on the employee in the form of a 25% reduction of the WGA benefit for a period of four months. The employee objected, but the employer declared the employee's objection unfounded. The employee then lodged an appeal against this decision with the Court.
The Court ruled that the employee was obliged to cooperate in activities aimed at finding suitable work. For that reason, the employee was obliged to cooperate with the insurance company's contact request. Regardless of whether the employee had the right to request an authorization from the insurance company, the employer provided the authorization but even afterwards the employee refrained from contacting the insurance company.
The Court rejected the employee's complaint that he had not been given the opportunity to express his views on the measure to be imposed. The employer had offered the employee this opportunity in a registered letter. The fact that the employee had not accepted or picked-up this letter was for his own account.
Then the employee lodged a higher appeal, but this was also unsuccessful.
The Central Appeals Tribunal fully endorsed the judgment of the Court.
It also explained what the legislation stipulates on this point:
• The employer who is a WGA-self-insurer bears the risk of paying the WGA benefit of an employee / former employee.
• The WGA- self-insurer also has the task of promoting the reintegration of an employee / former employee with a WGA benefit.
• The employee / former employee is obliged to make sufficient efforts to obtain or retain suitable employment.
• If the employee / former employee does not comply with this obligation, the self-insurer may refuse the WGA benefit in whole or in part, temporarily or permanently, though not completely and permanently. The self-insurer shall tailor the measure to the seriousness of the employee’s / former employee’s conduct and to the extent to which the employee / former employee can be imputed for this conduct.
• The imposition of measures by the self-insurer is a decision within the meaning of the General Administrative Law Act in which the self-insurer acts as an administrative body. Therefore the employee / former employee may lodge an objection against the decision with the self-insurer.
• Subsequently, the self-insurer, in its capacity of the administrative body, shall make a decision on the objection. The employee / former employee can appeal to the Court against the decision on the objection.

In the opinion of the Central Appeals Tribunal, the employer had sufficiently substantiated why the imposed measure was tailored to the seriousness of the conduct and the extent to which the conduct could be imputed to the employee / former employee.

In the above case, the employer found the Court on his side in cases of assessing the proportionality of the imposed measure to the employee’s violation of the rules.
An employer who is a WGA self-insurer may increase the likelihood of a successful outcome of this assessment by indicating in advance in a decree what measures may apply to what violation. In that case, all the Court has to do is to assess whether the imposed measure corresponds with the previously announced decision.
As for the content of the particular decision, all the Court would be allowed to assess then, is whether the employer could reasonably have made that particular decision. By staying as much as possible in line with the Maatregelenbesluit UWV (Measures Decree, used by the UWV), the employer may increase the likelihood that his decision will stand up to scrutiny by the Court.
Making and announcing a decision in advance and, if applicable, indicating the conduct of the objection procedure, will enable the self-insurer to prevent the Court from annulling the objection decision due to objections from the employee regarding the conduct of the objection procedure. It is not very common that self-insured employers have to handle an objection procedure for the WGA as an administrative body, but nevertheless, self-insurers are advised to prepare for it by making a measures decree and arranging the conduct of an objection procedure in advance.