Subdistrict Court in Preliminary Relief Proceedings of Bergen op Zoom, 23 January 2013, 752938 VV EXPL 12-148

Introduction

If an employer and an employee did not agree on the extent of the incapacity for work of an employee or on the reintegration possibilities, both parties may apply to the UWV for an expert opinion (also known as ‘second opinion’).

The expert opinion is not a binding advice. Therefore, the employer may set aside the outcome of an expert opinion and follow, for instance, the company doctor’s opinion. However, in case law the starting point seems to be that the expert opinion prevails over the company doctor’s opinion. From the judgment at issue it appears that this does not always have to be true and that there may be circumstances under which more weight is attached to the company doctor’s opinion.

The Facts

The employee in the case concerned was employed with De Rooy Distributie B.V. (‘De Rooy’) and reported sick on 9 August 2012. Some time afterwards, the company doctor ruled that he could resume work for 50%. The employee, however, refused to reintegrate. De Rooy then withheld the salary of the days that the employee had not come to work.

Since the employee did not resume his work after that either, De Rooy summarily dismissed the employee on 23 October 2012. The employee then invoked the nullity of the dismissal and held himself available to resume the stipulated work on first demand. He also reported that he had applied to the UWV for an expert opinion.

Next, De Rooy let it be known that it was prepared to withdraw the dismissal. However, the employee again failed to appear at work, after which De Rooy summarily dismissed him once more on 12 November 2012. On 19 November 2012 the insurance doctor of the UWV ruled that as per 1 October 2012 the employee could not be deemed suitable to do his own work.

The employee then relied on this expert opinion and argued that for this reason the wages had been wrongfully withheld and the dismissal had been wrongfully given. De Rooy argued that in this case the company doctor’s opinion prevailed over the opinion of the UWV, because the opinion of the UWV had been formed only on the basis of contact by telephone with the employee. Moreover, the UWV had neither consulted De Rooy nor the company doctor.

Judgment of the Court in Preliminary Relief Proceedings

The Court in preliminary relief proceedings followed De Rooy’s argument that decisive importance cannot be attached to an expert opinion just like that. However, in order to have an expert opinion of the UWV set aside, additional circumstances are required. The fact that the insurance doctor of the UWV had formed his opinion without having physically examined the employee and that his opinion had been formed a long time after the date of the dispute, constitutes such an additional circumstance. Therefore, the employee was ruled against.

Conclusion

From this judgment it follows that an expert opinion does not necessarily have more weight than an opinion of the company doctor. This is even more true if the opinion of the UWV was not formed carefully. In the event that an employee applies for an expert opinion, the employer is advised to indicate to the UWV that it wants to be heard in connection with the case.