Administrative High Court (CRvB): employer may not simply rely on company doctor’s advice after all

In the lower courts, however, a nuance to the main rule emerged. The administrative courts of Rotterdam, Den Bosch, Amsterdam and Haarlem opted for this nuanced approach, in which employers were allowed to rely on the advice of the company doctor for reintegration, provided they did not have to reasonably doubt its correctness. This offered employers – who are generally not medically literate – a possible defense against wage sanctions for insufficient reintegration efforts.

For a while it also seemed that the legislature would come to the aid of employers in these cases by making the company doctor's advice leading in the RIV assessment by the UWV. However, that bill has since been definitively withdrawn pending a report by the Independent Commission on the Future of the Occupational Disability System (OCTAS). The OCTAS already issued an interim report on 9 October 9 2023.

CRvB upholds its own doctrine

In a recent case, the CRvB had to rule again on the 'accountability and risk approach'. In that case, the UWV had imposed a wage penalty on the employer for insufficient reintegration efforts, even though the employer had followed the advice of the company doctor. The company doctor's advice was incorrect, the UWV-physician determined, which meant that the occupational health assessment was also incorrect and reintegration opportunities had been missed. The employer disagreed with the wage penalty imposed and invoked the nuanced approach developed in lower administrative case law: surely the employer did not reasonably have to doubt the opinion of the company doctor?

The CRvB rejects this standard. Section 65 of the Work and Income (Capacity for Work) Act (WIA) stipulates that, in the RIV assessment, the UWV must assess whether the employer and employee 'could reasonably have arrived at the reintegration efforts made'. It follows from the legislative history that the employer is and remains fully (ultimately) responsible for the reintegration, which also includes the quality of experts engaged by the employer. The CRvB finds the nuance developed in the lower case law incompatible with Section 65 of the WIA and sees no leads in the legislative history for such a deviation from the accountability and risk approach. The CRvB considers a wage penalty appropriate if the reintegration efforts have been insufficient due to an incorrect opinion of the company doctor, precisely because the employer is fully (ultimately) responsible for this. The CRvB takes into account that the legislator considers a legislative amendment necessary to change this, but has withdrawn the proposed legislative amendment.

Yet in this case, the employer still comes out on top. The UWV-physician assesses the RIV and current opinion of the company doctor in retrospect, whereby he must not lose sight of the context and timing in which the company doctor’s advice was given, according to the CRvB. In doing so, the company doctor must be allowed a certain professional margin, which the UWV-physician must assess with restraint. The CRvB emphasizes that the UWV-physician must test whether the company doctor could reasonably have come to his opinion based on the facts known at the time. The fact that the UWV-physician – judging with hindsight – would have acted differently is insufficient to conclude that the company doctor exceeded his professional margin.

That the company doctor exceeded his professional margin in this case was not substantiated by the UWV. The UWV thus did not sufficiently demonstrate that the employer – who followed the company doctor's advice – could not reasonably have arrived at the reintegration efforts made. The CRvB therefore declared the employer's appeal to be well-founded and annulled the UWV's wage penalty decisio. In addition, the CRvB ordered the UWV to pay the court fee and the costs of the proceedings.

Still hope for employers?

The CRvB reaffirms its own strict doctrine. Nevertheless, this ruling also provides guidance for employers to challenge a wage penalty imposed. The fact that the UWV in the RIV assessment comes to a different opinion about the (degree of) disability of an employee than the company doctor, does not automatically mean that this company doctor's opinion was incorrect. The company doctor has a professional margin of judgment and if this has not been exceeded, the employer may follow the advice. The UWV must review this cautiously and give reasons if it considers that the professional margin of judgment has been exceeded. As an employer, therefore, pay close attention to whether the UWV provides this substantiation. If not, this may constitute grounds for annulment of the wage sanction.

Whether and when the legislature intends to remedy this problem is not known. The Minister SZW wants to wait for the OCTAS report before intervening in the social security system. The report is expected in the first quarter of 2024. Now that the earlier bill is definitely off the table, employers have to make do with the strict doctrine of the CRvB and the newly offered tools for the time being.

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