Rhineland-Palatinate Regional Social Court, 16 April 2015, Ref.: L 5 KR 254/14
The regulation as to when sickness benefit is granted in accordance with § 44 SGB V is contained in § 46 SGB V.
In accordance with § 46 sentence 1 no. 1 SGB V, the entitlement exists from the start of hospital treatment or treatment in a preventive care or rehabilitation facility and, in accordance with § 46 sentence 1 no. 2 SGB V, from the day following the day on which the incapacity for work is medically diagnosed.
In the case of § 46 sentence 1 no. 2 SGB V, it is not the day on which the incapacity for work occurred, but the day on which it was determined by a doctor that is decisive, even if the insured person was only able to see the doctor after he was already unfit for work.
The duration of sickness benefit, in turn, is regulated in Section 48 SGB V. The case of the Rhineland-Palatinate State Social Court discussed here concerned the question of whether the health insurance fund was only obliged to pay sickness benefit until the medical re-presentation date or beyond that date in the case of a certificate of incapacity for work which certified incapacity for work "until further notice".
Facts of the Court Case
The plaintiff, who was born in 1963 and had health insurance with the defendant, fell ill on 5 April 2013 and was unable to work. The joint practice treating her gave a diagnosis of M47.22G according to ICD 10 (other spondylosis with radiculopathy: cervical region).
Plaintiff became incapacitated for work for an indefinite period
The plaintiff, who received unemployment benefit in accordance with the Third Book of the German Social Code (SGB III), initially received continued payment of benefits from the Federal Employment Agency. From 23 May 2013, the defendant then granted her sickness benefit. At the defendant's request, the doctors treating her stated on 10 June 2013 that the duration of her incapacity to work was indefinite.
On 11 July 2013, the Medical Service of the Health Insurance Fund (MDK) noted that the plaintiff had an appointment with a neurosurgeon on 23 July 2013, until then the inability to work was justified for the time being. The payment slip from the joint practice dated 24 July 2013 stated that the claimant was unable to work until further notice and that she had been reappointed on 8 August 2013.
On 29 July 2013, the medical director of the MDK noted that the plaintiff had last complained of pain during an appointment last week. She had an appointment with a specialist in neurosurgery. Further incapacity for work would only be accepted if it was justified by the neurosurgery specialist, otherwise there would be a positive performance profile.
Defendant health insurance company considers plaintiff fit for work
In a decision dated 29 July 2013, the defendant then informed the claimant that the claimant would be able to make herself available to the general labour market in accordance with her performance profile from 3 August 2013. The claimant lodged an objection to this and submitted a further payment slip from the practice of Dr M / Dr S dated 15 August 2013, in which it was certified that the claimant was unfit for work until further notice and that the last day of her incapacity for work was not foreseeable. The same information was given in a payment slip dated 23 August 2013. Furthermore, the plaintiff submitted a certificate from the practice of Dr M and Dr S dated 29 August 2013, which stated that the plaintiff was suffering from a chronic pain syndrome with exacerbation of the right shoulder in the sense of PHS (periarthritis humeroscapularis) and lumboischialgia with multiple herniated discs and was still unable to work.
In a statement dated 2 September 2013, the MDK doctor H then asked the MDK to review the inability to work. The MDK then informed the defendant on 23 September 2013 that the plaintiff had not attended the examination appointment. On 1 October 2013, the defendant then asked the MDK to re-schedule an examination appointment. The plaintiff submitted a report from the head physician of the Department of Orthopaedics and Trauma Surgery at W Hospital dated 20 September 2013 on outpatient treatment on 16 September 2013 for the file. The report listed the following diagnoses: Epicondylitis humeri radialis right, considerable osteochondrosis and spondylosis deformans cervicalis punctum maximum HWK III/IV with multiple protrusions and prolapses of the cervical spine (HWS), condition after knee joint arthroscopy left, 2011, nicotine abuse. The cervical spine was clearly painful in terms of mobility. On 23 October 2013, the plaintiff was examined by a doctor from the MDK, Dr S. He stated that the examination had revealed a final restriction of movement in both shoulders and in the cervical spine with indications of sensory disturbances in the right arm. Taking these functional and ability disorders into account, the plaintiff was currently unable to carry out her last job as manager of a video shop. However, she is able to carry out at least light physical work in changing postures, taking into account the restrictions mentioned. This performance profile is also likely to have been present since August 2013.
The defendant rejects the objection submitted by the plaintiff
The defendant rejected the objection in its decision of 9 December 2013, stating that, according to the findings of the MDK, the plaintiff's incapacity to work ended on 2 August 2013.
Plaintiff first files suit with the Koblenz Social Court
The claimant filed a complaint against this with the Koblenz Social Court on 9 January 2014. She submitted further medical documents. The defendant in turn submitted an expert opinion from Dr S dated 10 February 2014, who stated that the documents submitted still did not provide any justification for a "cancelled performance profile". In his expert opinion of 14 February 2014, the MDK doctor stated that in 2013, the plaintiff had mostly only minor, and occasionally - in September to October - also significant or moderate functional restrictions of the musculoskeletal system, which, however, only prevented certain activities, but would never prevent, for example, a full-time light activity at ground level without forced postures and up to table height.
Upon enquiry, the claimant informed the court that she would receive sickness benefit from 24 November 2013 due to another illness. The social court obtained an expert opinion from an orthopaedic specialist. He made the following diagnoses: myostatic and partially advanced degenerative cervical spine syndrome with cervicobrachialgia on the right with multi-segmental protrusions, prolapse; femoropatellar pain syndrome knee joint on the right with initial signs of wear, patella bipatita, myostatic lumbar spine syndrome without significant signs of wear. The doctor came to the conclusion that the claimant was no longer able to perform any activity on the general labour market on a full-time basis until 23 October 2013. This was evident from the physical examination at W Hospital on 16 September 2013. Only the examination by the MDK on 23 October 2013 documented that there was only a final restriction of the cervical spine and shoulders on both sides. The defendant submitted an expert opinion from the MDK doctor dated 5 August 2014, in which it was stated that the W hospital had not documented any restriction of movement on 16 September 2013, but only an expression of pain by the plaintiff. No "such a significant functional restriction - strictly speaking no functional restriction at all - could be concluded from the findings".
Koblenz Social Court obliges the defendant to continue paying the plaintiff sick pay
In a judgement dated 14 October 2014, the Koblenz Social Court obliged the defendant to grant the claimant sick pay beyond 2 August 2013 until 23 October 2013, cancelling the contested decision.
In its reasoning, the court essentially stated that the plaintiff was unfit for work within the meaning of Section 44 of the Fifth Book of the German Social Code (SGB V) during the period in question. This had initially resulted from the certificates of incapacity for work issued by the treating physicians Dr M and Dr S. They had reaffirmed their assessment in their statement of 29 August 2013. These medical findings were also not refuted by the MDK's statements. In its statement of 29 July 2013, the MDK merely stated that further incapacity for work could only be accepted if the specialist doctor could justify it. The MDK had not carried out its own investigations into the plaintiff's performance. The decision of 2 August 2013 was therefore not based on the MDK's findings. The expert Dr H had also assumed that the claimant was unable to work until 23 October 2013.
The defendant health insurance company finally lodges an appeal with the Rhineland-Palatinate Regional Social Court
The defendant lodged an appeal against this judgement with the Rhineland-Palatinate Regional Social Court. The defendant based its appeal in particular on the fact that the necessary medical findings had not been available by 23 October 2013. According to the payment slip dated 24 July 2013, the claimant was reappointed on 8 August 2013. However, the next payment slip was not issued until 15 August 2013. For this reason alone, an entitlement to sick pay beyond 2 August 2013 until 23 October 2013 must be denied.
Judgement of the Rhineland-Palatinate State Social Court
Regional Social Court confirms judgement of the lower court
The Rhineland-Palatinate Higher Labour Court followed the opinion of the Social Court and ruled that the Social Court had rightly upheld the claim.
The plaintiff was entitled to payment of sickness benefit beyond 2 August 2013 until 23 October 2014: Even taking into account the defendant's statements, the Senate was convinced that the plaintiff had not been able to perform light work on the general labour market on a full-time basis during the period in question. The Senate essentially based this assessment on the findings of the treating physicians Dr M and Dr S as well as the expert opinion of the expert Dr H of 5 June 2014. As the Social Court had already stated, there were no doubts about the assessment of the treating physicians. The statements of the MDK, which had personally examined the claimant for the first time on 23 October 2014, would not refute the assessment of Dr M and Dr S. Finally, Dr H had confirmed in his convincing expert opinion after evaluating all documents that the claimant was unable to work due to her restrictions in the area of the cervical spine and shoulder.
Insofar as the defendant has now asserted for the first time in the appeal proceedings that the necessary medical determination of incapacity for work had not been made, this would not apply. According to § 46 sentence 1 no. 2 of the Fifth Book of the German Social Code (SGB V), the entitlement to sickness benefit arises from the day following the day on which the incapacity for work was medically established.
Plaintiff had provided evidence of further incapacity to work in good time
The insured person is obliged to consult a doctor again in good time before the end of the last certified incapacity for work in order to have the continuation of the incapacity for work determined. In the present case, the claimant was certified as being unable to work until further notice in the payment slip dated 24 July 2013. Although it was stated that the claimant had been reappointed as of 8 August 2013, it could not be inferred from this information that the duration of the incapacity to work was to be limited until this date. Moreover, it can also be inferred from the MDK's file note of 29 July 2013 that both Dr S and the MDK assumed that the plaintiff would continue to be unable to work, at least until she was examined by a neurosurgeon. The attending physicians had then again stated in payment slips dated 15 August 2013 and 23 August 2013 that she was unable to work until further notice and that the last day of her incapacity to work was not foreseeable.
Source: Rhineland-Palatinate State Social Court
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