When should you seek a second opinion?
Under the new Working Conditions Act, as of July 1, 2017, an employee is entitled to a second opinion if he or she has doubts about the advice of a company physician. This is not a non-binding request for the primary company physician. He is legally obligated to comply with it (Disciplinary Law ECLI:NL:TGZCTG:2021:83). A second opinion may concern the company doctor’s advice in the context of:
- Sick leave management
- Occupational health examination (PAGO or PMO)
- Pre-employment medical examination
- Consultation with the company doctor regarding health issues related to work (conditions), including open consultation hours.
What about the second opinion?
A resident (AIOS), occupational health physician, or junior physician is not a medical specialist. This physician is authorized to conduct occupational health consultations under the delegation of a senior occupational health physician. (Occupational medicine is a registered medical specialty requiring a four-year postgraduate training program.)
The professional association of occupational physicians, the NVAB/KNMG, stipulates in its professional guidelines that a junior physician acting under delegation must consult with a permanent supervisor—an occupational physician—on all (complex) cases. The supervisor must therefore always be aware of the actions, decisions, and recommendations of the junior physician acting under delegation. After all, the junior physician performs tasks on behalf of and under the responsibility of this occupational physician. He or she effectively forms a single unit with the occupational physician in whose name the junior physician acts.
The request for a second opinion from an occupational physician is therefore a request for an objective assessment of a decision made by the delegated occupational physician, whose actions and conduct must be known to the supervisor/registered occupational physician. The supervisor has thus already played a role in the initial assessment.
If an employee requests a second opinion following an evaluation by a general practitioner, this request should simply be granted. A repeat evaluation by the supervisor effectively admits that the delegation of duties is not working. It may also be perceived by the employee as unnecessarily intimidating.
This was certainly not the government’s intention with the New Working Conditions Act. Disciplinary action may result for the supervisor, the company physician, and the general practitioner if an employee brings this matter before the disciplinary board.
Who requests a second opinion?
Only an employee can request a second opinion, but this must be done through the company’s own occupational physician. Under the new Occupational Health and Safety Act, the company’s own occupational physician may not refuse a request for a second opinion. Under the same law, the employer bears the costs of the second opinion. A second opinion examination is independent, comprehensive, and often costly for the employer in the long run. An employer cannot request a second opinion if they disagree with the company doctor’s advice. However, an employer does have the right to request a re-examination or expert assessment by another qualified, registered company doctor. It is more appropriate not to refer to this as a “second opinion.” We refer to it as a second opinion or expert assessment. This assessment is also conducted by an independent occupational physician. In principle, both assessments should provide an independent evaluation of the work load and reintegration possibilities, or offer an independent opinion on the aforementioned topics.
The company physician may offer the employee a second opinion on their own initiative if the situation warrants it. This may be the case, for example, if the company physician lacks the specific expertise required to diagnose an occupational disease. In such cases, the employee retains the right to decide whether to actually consult another company physician. The company physician cannot, therefore, require the employee to seek a second opinion.
Conversely, a request from an employee for a second opinion must, in principle, always be granted. A second opinion may only be refused if there are compelling reasons to do so. For example, a situation in which an employee threatens to misuse the second opinion or repeatedly seek it unnecessarily.
The Inspectorate SZW (formerly the Labor Inspectorate) monitors whether both employers and employees comply with this occupational health and safety regulation.
Requesting a second opinion?
As an employee, you can request a second opinion from your own company physician. This is provided for in Section 14 of the Working Conditions Act. An employer may also request a second opinion from another company physician on behalf of an employee, provided the employee consents.