It frequently happens that a person is no longer fit for their former job after an accident, but may still be able to earn money in some other way. Is it then permissible for a compensation payer to invent a position elsewhere for that person? Or, as in The Hague, does that result in a motion of censure?
Those who know their classics know that caution is also required here. Some twenty years ago, Jaap Spier, as A-G, had to write an opinion on the case of a man who, at the age of 37, had become completely incapacitated for his own work due to an accident. In order to still have something to do, he distributed leaflets and occasionally did odd jobs at the cemetery. His other party's insurer concluded that he could still do assembly line work. This resulted in a reprimand for the insurer: according to Spier, it is going too far if the person causing the work disability ‘thinks he can interpret the way in which the victim arranges his seriously disturbed life in a way that pleases him.’
Reintegration obligation
Active interference in the content is therefore going too far. But as a paying party, you may well play a monitoring role. After all, a sick employee has an obligation to reintegrate. If this is not complied with, it will have consequences for the right to compensation. Furthermore, as an injured party, you have a duty to limit damages. This can mean that you must continue to make efforts to find other work, even if the UWV finds that you are completely disabled. This is especially true for people who are at the beginning of their careers, or who can get back to work by taking a short training course. Of course, there has to be enough room in the labor market. For older workers, that can be a problem. Then the damage control stops.
How far does damage control duty go?
It is not always easy to pinpoint where controlling turns into active interference with content. An example is the case of a 28-year-old woman who, after a road accident can still only work three instead of five day hours as a district nurse. Other health care positions she may be able to handle full-time. She would love to continue working as a district nurse. Her opposing party feels that she is not fulfilling her duty to mitigate damages as a result. In doing so, the opposing party is effectively saying that she should give up her personal preferences and choose another position. Is that allowed? The answer is yes. As an injured party, you have to adapt to some extent to the new situation created by the accident. That may mean that you will have to accept that working hours will change, that travel time will increase, and even that you may have to do other work. But like everything else, that too has a limit. In the case of the district nurse, the judge found that she did not have to trade her steady job, in which she felt secure, for the uncertainty of another position, which she also might not be able to perform full-time. So, for her, no position elsewhere
Amsterdam, April 15, 2021
This blog was written by August Van. He no longer works for us. If you have questions about this blog, please contact Bojan Dekker.