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Sick pay continued even despite doctor error in sick leave
Kassel (jur). If a doctor incorrectly notifies a patient too late that he is still unable to work, the health insurance fund may not simply cancel the sickness benefit. If the disabled person has "done everything in his power" so that there is no time gap between the first and the subsequent sick leave, a mistake made by the doctor must not be at his expense, the Federal Social Court (BSG) ruled on Thursday, 11 May 2017 ) in Kassel (Az .: B 3 KR 22/15 R). In such an exceptional case, the health insurance would continue to pay sickness benefit.
Every year, several hundred thousand employees receive sickness benefit. This is paid by the health insurance companies, if the insured was sick-leave for more than six weeks. Even if the sick insured person is dismissed, the right to sickness benefit for the same illness persists for up to 78 weeks.
If the faulty treatment has no consequences for the patient, this is legally irrelevant. (Image: Zerbor / fotolia.com) The prerequisite for this is that there are no time gaps between the first sick leave and the follow-up certificates. Until 22 July 2015, the law provided that, before the expiry of the first sick leave, incapacity to work had to be re-certified for the subsequent period. If the insured person came only one day after expiration and therefore too late to the doctor, the sick pay claim was lost.
The legislature improved the law. Now it is possible that the renewed certificate of incapacity for work will be issued one working day after expiry of the previous sick leave, without losing the sick pay claim. Nevertheless, delays beyond this also lead to a loss of the cash balance.
In the case now decided on, the plaintiff from the Eifel region was still subject to the earlier regulation. The woman was suffering from depression. Her employer had terminated her. When her claim to sick pay continued to be paid by her employer after six weeks, she was paid sick leave by the Handelskrankenkasse for her inability to work.
At the end of her sick leave, she demanded a follow-up certificate from her family doctor. The woman, still suffering from depression, pointed out that there should be no time gap between the first and the follow-up certificate. Otherwise, she would lose her sick pay claim.
The family doctor mistakenly did not think this was necessary. One day later, she was going to the specialist doctor anyway, who could then take her off sick again.
But this was exactly one day late, according to the earlier rules. Since the woman did not receive the certificate of renewed incapacity for work in due time, her health insurance refused to continue her sickness benefit.
The insured moved to court. She had made representations to her family doctor in good time, and she had continued to be ill. It should not be blamed on her that her family doctor did not write her off yet. Her doctor even noted in his notes that she was still ill. The doctor is also a cash doctor and thus stand in the "legal system" of health insurance. Therefore, the medical error is also attributable to the health insurance. She must continue to pay sick pay.
The BSG gave the woman right now. According to the legal regulations, there should in principle be no time gap between the individual sick leave. In such a case, the sick pay claim is lost. This was already decided by the 1st BSG Senate last on 16 December 2014 (Ref .: B 1 KR 31/14, B 1 KR 35/14 and B 1 KR 37/14, JurAgentur notification from the day of the judgment).
At that time, however, the Kassel judges had also seen exceptions. If the family doctor has not recognized a medical incapacity incorrectly and has not issued a corresponding sick leave, he may exceptionally still have a sick pay claim. In such a case, however, insured persons have the problem that their incapacity to work has yet to be documented.
However, a claim for continued payment of sickness benefit can also exist if the certificate of incapacity for work was issued late or not for non-medical reasons, the 3rd BSG Senate decided. This is the case here.
The woman was undisputedly still ill. She had reported in time to her family doctor for a follow-up certificate. She even pointed out that there should be no time gap between the sick leave. She did everything she could to get her sickness benefit.
The error of the doctor should therefore not be at their expense. This is also necessary for equality reasons. If, due to a medical error of the doctor, the absence of work is subsequently certified and sickness benefits paid, this must also apply to non-medical reasons.
But even the doctor was not really a reproach. Although the law clearly stipulates that no time gaps between the individual sick leave may arise. By contrast, the subordinate guidelines of the Federal Joint Committee of Physicians, Clinics and Health Insurance Funds stipulate that the doctor can issue a sick leave letter seven days retroactively.
The doctor is then not to blame that he has these guidelines and not the law in view. The health insurances were aware of the different guidelines, because they had been involved in the design. It would therefore be unlawful if the insured have done everything right, the coffers with reference to the law want to suppress the sick pay. fle / mwo