In disputes between you, as an employer, and the employee about whether or not reintegration into their own work is still possible, you are not necessarily lost even if the company doctor and even the UWV’s insurance physician (after a second opinion) support that employee! You then have the option of a third opinion! If your question has not been answered after reading this blog, don’t hesitate to get in touch.
The court follows whichever doctor can best substantiate their medical judgment.
It is settled case law that, when there is a discussion about reintegration possibilities, i.e. whether or not to return to one’s own work, or about the cause of incapacity for work, the court does not necessarily follow the judgment of the company doctor or the judgment of the UWV. The court will go by the doctor who can best substantiate why they hold their view. It can therefore be important for an employer to stand firm and, in addition to the occupational health service’s company doctor and the UWV’s insurance physician, engage a third expert doctor. This was recently confirmed once again by the ‘s-Hertogenbosch Court of Appeal in a ruling of 14 October 2014!
Discussion of first track or second track.
This concerns a neurologist employed by the Kempenhaeghe Foundation. After a fall, the neurologist suffers a brain contusion and, as a result, sustains a non-congenital brain disorder. A discussion arises as to whether the neurologist should reintegrate into his own work (first track) and be able to provide patient care, or should reintegrate under the second track because he can never do his own work again. The neurologist requests an expert opinion from the UWV, which states that the employer had made insufficient reintegration efforts and must reintegrate under the first track. Kempenhaeghe then engages a labour expert, who finds that the neurologist cannot do his own work and that there is also no other suitable work for him, so that the second track must be followed.
UWV wage sanction
Shortly afterwards, following the Gatekeeper Improvement Act assessment for the WIA, the UWV imposes a one-year wage sanction because Kempenhaeghe had not complied with all reintegration obligations. This consisted of the fact that, after an expert opinion, the employer did not wish to further investigate the first-track reintegration possibilities, and that action in the second track had been taken too late. The UWV’s ruling showed that the company doctor had (at least at some point) come to agree with the UWV, and thus disagreed with the employer and the labour expert it had engaged.
Employer stood firm and did not allow the neurologist back into his own work.
The UWV wage sanction did not move Kempenhaeghe to change its behaviour, as the neurologist claims, in summary proceedings before the subdistrict court, admission to work (taking his limitations into account) in accordance with the UWV’s guidance. The subdistrict court found that Kempenhaeghe had made it plausible that the neurologist should not reintegrate into his (own) adapted work, because the neurologist made errors when performing sleep studies, while the resumption of patient contact had also not gone well.
Subdistrict court and Court of Appeal ruled that the first track was no longer at issue!
The neurologist subsequently appealed, and the Court of Appeal ultimately reaches the same judgment as the subdistrict court. Kempenhaeghe’s doctors and labour expert were, in this case, able to make it plausible that the neurologist was unable to perform his own duties (in adapted form or otherwise). The professional and personal interests for the neurologist in returning to work and maintaining his knowledge and experience must yield to the employer’s own responsibility to properly treat the patients registered with it. This requires that there be no doubts about the employee’s functioning. Kempenhaeghe’s interest in this is given decisive weight. Admission would in principle also mean that the necessary supervision would have to be provided by his direct colleagues. That would quickly lead to an unworkable situation, since a number of those colleagues and the medical head had shown that they had lost confidence in a good outcome. The employee’s claim is therefore rejected.
Business advice:
In discussions about reintegration where the occupational health service and the UWV are aligned, consider using an external medical expert to substantiate and make plausible your own positions in the reintegration. You do not have to follow the company doctor or the UWV’s insurance physician when taking measures to protect your business interest. Make a good assessment together with your lawyer. So you can make use of a so-called “third opinion”.
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