Help with WIA objection | Find your legal solution

Questioner

Hello, I just received a WIA decision in which I was declared 37.51% incapacitated for work. Now I am told by my boss that he is advised to file an objection because he is self-insured and there are contradictions in my report from the UWV. I will continue to work for the same boss and in the same position, only the duration is reduced from 40 to 25 hours per week. The insurance doctor has given me an hour restriction of a maximum of 30 hours and the occupational expert has calculated with 25 hours and that is how they arrived at a decision of 37.51%. Can they simply change that after an objection? We are a small company and I also read somewhere that it would make little difference to him, is this correct? Thanks in advance.

Lawyer

It is true that it may not make much difference to the employer as long as you continue to receive a WGA benefit, since the employer only benefits if you were to receive an IVA (fully and permanently incapacitated for work). But that is not easily accepted. Employees who are partially incapacitated for work and employees who are fully but not permanently incapacitated for work receive a WGA benefit, but the latter is many times more expensive for the employer as a self-insurer. In fact, your employer could then file an objection if he believes that you are entitled to an IVA. For a higher percentage of incapacity for work but with retention of WGA, it makes no sense for the employer. But of course it does for you. If the occupational expert has determined an incorrect percentage of incapacity for work and you may receive too low a benefit, it is to your advantage if this is corrected. And that is indeed possible in an objection, if the occupational expert decides positively on this in the objection. Now you actually have to work more hours than the insurance doctor has determined, and I assume that you do not like that. If you require further information or would like to object, please feel free to email me for more specific advice on this matter (related to your situation).

Questioner

Thanks for your answer but I think the intention will be that they want to challenge the 37.51% to get below that 35% so that I am not entitled to WIA and they therefore do not have to pay. I think that if I had to keep those 30 hours that the insurance doctor indicated, I would not exceed 35%. Which is favorable for my boss and the insurance company but not for me.

Lawyer

That's right, your employer can object because the occupational expert calculated fewer hours, or they want to try to declare you fully fit for work, then that can certainly be disadvantageous for you. But for a small employer the premium may not be lower anyway so there is little advantage to be gained for the employer. Your employer may therefore not object at all. If that does happen because of the limitation of the hours, then the occupational expert can indeed change it to your disadvantage in the objection, although I don't know what the underlying idea is of the occupational expert to calculate with 25 hours instead of 30.

Questioner

Just a preliminary question regarding the above. Suppose my boss objects and it is approved, do I have to pay back the paid benefit for that current period? (or is it wiser to put my benefit money aside until the decision on the objection has been made, no matter how difficult that will be in the coming months) Thanks in advance.

Lawyer

Unfortunately, that possibility exists. If your employer objects, the award decision will be reconsidered. If it turns out that you are actually less incapacitated for work, the UWV can proceed to recovery. Your employer must object within 6 weeks. If the employer has not done so, that decision is legally unassailable. So in any case, it might be wise to put money aside for at least 6 weeks after that decision.