It happens regularly that employers receive conflicting advice about an employee's fitness for work. The company doctor, the GP and the insurance doctor may give contradictory advice on the question whether the employee is fit to do his own work. Is there a ranking order between these conflicting pieces of advice? Which advice is decisive, and why? It is important to know this, because (statutory) reintegration obligations apply if an employee is unfit for work. If these obligations are not followed properly, a wage sanction may be imposed (an extension of the period in which the employer is obliged to continue to pay an employee's salary).
Court of Appeal of Arnhem-Leeuwarden
The Court of Appeal of Arnhem-Leeuwarden recently rendered a judgment on this topic (1 April 2021, ECLI:NL:GHARL:2021:3017). The employee called in sick on 11 October 2016. The ‘arbo doctor’ advised that the employee had (non-medical) stress complaints, but was fit to do his own work (fit for work). The employee disagreed and asked for an expert opinion. The insurance doctor of the UWV found that the employee was unfit to do his own work (unfit for work). The insurance doctor involved the patient record of the GP in his consideration, which stated, among other things, that the employee was being treated since 29 September 2016 for complaints of nervous exhaustion/burnout, and that Oxazepam and Quetiapine had been prescribed. In addition, the GP's notes showed that things were not going well at work and that the employee was unable to work because of various symptoms (including gloominess, sleeping badly, headaches, neck aches, restlessness).
The parties differ as to whether the employee was unfit for work in the period from 11 October 2016 up to and including 30 November 2016 (when the employment ended by operation of law). The employer argued that he is not, and referred particularly to the advice of the arbo doctor. The employee argued that he is unfit for work and claimed his wages for the period from 11 October 2016 up to and including 30 November 2016.
The Subdistrict Court ruled in favour of the employee and the employer lodged an appeal. The Court of Appeal observed that the employee had not been seen by a company doctor (a specialized doctor), but by an arbo doctor (a junior doctor), and that the arbo doctor had not contacted the GP. The insurance doctor, on the other hand, did contact the GP and involved the patient record in his opinion. All the above prompted the Court of Appeal to attach more weight to the report of the insurance doctor of the UWV than to the report of the arbo doctor.
Conclusion
With this ruling, the Court of Appeal has confirmed the prevailing opinion in case law. In order to assess which advice is decisive, the care and expertise with which an advice was formed are important. It must be tested, among other things, whether all the parties involved were sufficiently heard and seen, and which (medical) information the advice was based on. However, there is no compulsory ranking order.
Bill
On 1 October 2020, Minister Koolmees submitted a bill saying that the opinion of the company doctor will become the guiding principle in the so-called ‘RIV test’ after 104 weeks of unfitness for work. That is the moment when the UWV makes an independent assessment, by an insurance doctor of its own, of the employee's work capacity. It happens regularly that the opinions of the insurance doctor and the company doctor (which the employer follows) are contradictory, and that this results in a wage sanction for the employer. This bill ensures that no wage sanction can be imposed on the employer anymore for following the advice of the company doctor. The possibility of requesting an expert opinion during the reintegration process continues to exist. The act was supposed to enter into effect on 1 September 2021; however, because there is a caretaker government now, this date will probably be moved forward.
Please contact the employment law team of Kennedy Van der Laan if you have any questions.
