Does the sickness fund trap persist despite a change in the law?

SG Mainz accuses BSG of "illegal standard concretization"

Mainz (jur). Despite a change in the law from July 2015, the so-called sickness fund trap could persist. The Social Court (SG) Mainz in a recently published judgment of 31 August 2015 draws attention (Az .: S 3 KR 405/13). In it, however, it turns with harsh words against the case law of the Federal Social Court (BSG) in Kassel, according to which the claim for sick pay in certain cases may continue to be lost despite ongoing illness.

Background of the "sickness fund trap" is the sequence of disability certificates. It has always been sufficient for the employer to claim continued pay when employees visit the doctor again on the first working day after their previous sick leave has expired.

Image: Björn Wylezich - fotolia

If insured persons switch to sick pay after the six-week sick pay period, they had to rethink earlier. For here the certificate was valid only for the following day of the doctor's visit. According to the case-law of the SPA, this applied not only to the first but also to the subsequent certificates (most recently the judgments and the JurAgentur report of 16 December 2014, B 1 KR 31/14 and others). Insured therefore had to go to the doctor again on the last day of a certificate in order to secure a continuous sick pay claim.

A change in the law with effect from 23 July 2015 has changed this. Now, the medical "pay-out slip" for sickness benefit also applies from the day of the certificate and a doctor's visit on the following working day is sufficient.

Nevertheless, there may still be gaps in the certificates. In the normal case of an employee, this merely leads to an interruption of the sick pay. With a new certificate because of the same disease, the claim lives up again.

On the other hand, according to the BSG, grave consequences have a gap if employees lose their jobs while receiving sickness benefits. After the Kasseler jurisprudence expires the "aftermath" insurance relationship by a certificate gap. As a result, the right to further sickness benefit is lost.

The SG Mainz considers this jurisprudence according to old as well as new law to be "outlandish". In its 30-page judgment, it accuses the BSG of an "unlawful standard concretization".

Essentially, the Mainz judges argue that according to the law, the first certificate merely fixes the beginning of sickness benefits. Subsequently, the claim persists as long as the same illness persists. But this alone is a matter of medical facts, but not of the certificates.

In any case, if there is a gap between two certificates, then only the services will be suspended. However, the "after-effective" insurance relationship continues to exist if the doctor - despite the gap - certifies incapacity for work because of the same illness. Contrary to the case law of the SPA, therefore, the claim for sickness benefits with the new certificate even if the employment relationship has been terminated in the meantime. (Mwo / fle)