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BSG: Insured persons have to see a doctor on time if they are unable to work
Kassel (jur). If a doctor incorrectly certifies that a patient is still unable to work too late, the health insurance company cannot simply cancel sickness benefits. If the insured who is unable to work has done "everything in his power" so that there is no time gap between the first and the following sick leave, a mistake by the doctor must not be at his expense, the Thursday, May 11, 2017, the Federal Social Court (BSG ) in Kassel (Az .: B 3 KR 22/15 R). In such an exceptional case, the health insurance company must continue to pay sickness benefit.
Several hundred thousand workers receive sick pay each year. Health insurers pay this if the insured person has been on sick leave for more than six weeks. Even if the sick member is terminated, sickness benefit for the same illness continues for up to 78 weeks.
The prerequisite for this is that there are no gaps in time between the first sick leave and the subsequent certificates. Until July 22, 2015, the law stipulated that incapacity for work had to be certified again for the subsequent period before the first sick leave. If the insured came to the doctor even one day after the expiry and was therefore too late, the entitlement to sickness benefits was lost.
The legislature improved the law. It is now possible for the new certificate of incapacity to work to be issued one working day after the previous sick leave has expired, without the sickness entitlement being lost. Nevertheless, delays going beyond this result in a loss of cash benefits.
In the case that has now been decided, the applicant, who comes from the Eifel region, was still subject to the previous regulation. The woman was depressed. Her employer had fired her. When her employer ceased to be entitled to continued sick pay after six weeks, she received sickness benefit from the commercial health insurance fund because of her incapacity for work certified by the doctor.
On the last day of her sick leave, she requested a follow-up certificate from her family doctor. The woman, who was still suffering from depression, indicated that there should be no time gap between the first and the subsequent certificate. Otherwise she would lose her entitlement to sick pay.
The family doctor mistakenly did not consider this necessary. A day later she went to the specialist anyway, who could then write her off again.
But according to the previous rules, this was exactly one day too late. Since the woman had not been given proof of her incapacity to work on time, her health insurance fund refused to continue paying the sickness benefit.
The insured went to court. She reported to her family doctor in good time, and she continued to be ill. She shouldn't be blamed for the fact that her family doctor still didn't write her off sick. Her doctor even noted in his notes that she was still ill. The doctor is also a health insurance physician and is therefore within the "legal framework" of the health insurance companies. Therefore, the medical error should also be attributed to the health insurance company. She would have to continue paying sickness benefit.
The BSG now agreed with the woman. According to the legal provisions, there should in principle not be a time gap between the individual sick leave. In such a case, the entitlement to sickness benefits is lost. The 1st BSG Senate last decided this on December 16, 2014 (file number: B 1 KR 31/14, B 1 KR 35/14 and B 1 KR 37/14; JurAgentur report from the judgment day).
At that time, however, the Kassel judges had also seen exceptions. If the family doctor has not recognized a medical incapacity for work and has not issued a corresponding sick leave, there may still be an entitlement to sick pay in exceptional cases. In such a case, however, insured persons have the problem that their incapacity to work must still be documented retrospectively.
The 3rd BSG Senate now decided that the sickness benefit can also be paid if the certificate of incapacity for work was issued too late or not at all for non-medical reasons. This is the case here.
The woman was indisputably still sick. She reported to her family doctor in time for a follow-up certificate. She even pointed out that there should be no time gap between sick days. In doing so, she had done everything possible to receive her sickness benefit.
The doctor's mistake should therefore not be at her expense. This is also necessary for reasons of equality. If, due to a medical error by the doctor, the incapacity to work is certified and sickness benefit is paid, this must also apply to non-medical reasons.
But the doctor was not really to be blamed either. The law clearly stipulates that there should be no time gaps between the individual sick days. The subordinate guidelines of the Federal Joint Committee of Doctors, Clinics and Health Insurance Providers, on the other hand, provide that the doctor can issue a sick leave retrospectively for seven days.
The doctor should then not be blamed for not having the guidelines in mind and not the law. The health insurance companies are aware of the different guidelines, because they were involved in the design. It is therefore unfaithful if the insured have done everything correctly and the insurers want to avoid the sick pay with reference to the law. fle / mwo