WIA [Capacity to Work Act] benefits can be granted to employees that are incapacitated to work for more than 104 weeks. There are two types of WIA benefits. Employees that are partially incapacitated to work, and employees that are fully, but not permanently incapacitated to work, receive WGA benefits. Employees that are fully and permanently incapacitated to work, receive IVA benefits. If the employee has no chance of recovery, or only minimal chances of recovery, this is termed permanent incapacity to work.
The employee is interested in receiving IVA benefits, also because this is more than WGA benefits. But the employer is especially interested in IVA benefits being granted, because IVA benefits cost him nothing, while WGA mean substantial costs for the employer, either because he has to pay those benefits himself as excess insurance, or because those WGA benefits result in substantially higher differentiated WGA premiums. The UWV is therefore interested in granting employees WGA benefits, rather than IVA benefits. The following case, from our own practice, shows that employers should also take care themselves to monitor that IVA benefits are granted to employees that are fully incapacitated to work, in a timely manner.
An older employee is employed by an employer. This employee is incapacitated to work in December 2004, and remains incapacitated. In a WIA examination, the employee is found to be fully incapacitated to work. Because the UWV is of the opinion that the employee still has more than minimal chances of recovery, this full incapacity to work is not deemed permanent. Therefore WGA rather than IVA benefits are granted. This is effected starting January 2007, but later the WIA benefits are brought forward with one year, because the employer successfully objected to and appealed the UWV decision to extend the employer’s obligation for continued payment of wages due to insufficient reintegration efforts.
The employer then for a long time hears nothing about the employee’s WGA benefits. However, on 21 July 2010 the employer receives a decision from the UWV stating that the term of the wage-related WGA benefits expires in December 2010. The UWV then grants the employee additional wage benefits, while the employee is not working. According to legislation, this can only take place if the employee is fully incapacitated to work.
The employer had already contacted the UWV in April 2010 because he found it odd that the employee was still fully incapacitated to work, while the UWV had stated that there was a more than minimal chance of recovery. The employer had therefore requested the UWV to do a re-assessment. The decision on that request finally arrives on 29 July 2010, eight days after the decision that the UWV had sent concerning the end of the wage-related benefits. To the employer’s surprise, not only are the WGA benefits converted to IVA benefits, but this is even done retroactively, from 25 September 2008.