Written by Ömür Arslan, attorney at Arslan Advocaten, practising social security law. Registered in the Netherlands Bar’s register of legal practice areas for tenancy law and social security law.
Nederlands: Lees dit artikel in het Nederlands: Ziektewet gestopt na de eerstejaarsbeoordeling: bezwaar tegen de EZWb
Türkçe: Bu makaleyi Türkçe okuyun: İlk yıl değerlendirmesinden sonra Hastalık Kanunu ödeneği durduruldu: EZWb’ye itiraz
Has your benefit under the Sickness Benefits Act (Ziektewet) stopped after the first-year sickness benefit assessment? Then UWV, the Dutch employee insurance agency, usually takes the view that with suitable work you can earn more than 65% of your reference income (maatmaninkomen). You can lodge an objection against the decision. In doing so, examine the medical limitations as well as the selected jobs and the calculation. For an EZWb decision the time limit is usually six weeks; with an ordinary declaration of recovery, a much shorter time limit may apply.
The decision can come as a blow if you still have symptoms and cannot return to your old work. Nevertheless, after the first year of illness UWV does not assess solely whether you can go back to your former job. The question of other work and earning capacity takes on an important role. Understanding which standard has been applied is therefore the first step towards a targeted objection.
What is the first-year sickness benefit assessment?
The EZWb (Eerstejaars Ziektewetbeoordeling) is an assessment under the Sickness Benefits Act for insured persons who qualify for it, including many people without an employer. UWV examines which possibilities for work still exist and what income could theoretically be earned with them. The assessment takes place around the end of the first year of illness, but the actual planning may differ.
Not everyone undergoes the same examination. Sometimes UWV can establish on the basis of the available information that the benefit needs to continue. In other situations both an insurance doctor and a labour expert are involved. Work that you already do and the income from it may also affect the assessment or its planning. UWV describes the situations and consequences of the sickness benefit assessment.
Check which procedure is stated in your letter. A medical finding that you can do your own work again is not the same as a termination following an assessment of other work and earning capacity. That distinction has consequences for the arguments, the end date and possibly the objection period.
What does the 65% threshold mean?
When assessing earning capacity, UWV looks at what someone without your limitations and with comparable education and experience earned: the reference income. This is compared with what, according to UWV, you can still earn with the selected work. If that could be more than 65%, the entitlement to sickness benefit may end on this ground.
The percentage is therefore not a medical finding that you are 65% healthy. Nor does it mean that you have actually already found a job. A theoretical earning capacity can be decisive. Anyone who merely argues that no employer is willing to hire them is not necessarily challenging the calculation on which the decision is based.
An example makes the difference clear. If the comparison wage is a fictitious € 20 per hour and the remaining earning capacity is € 14, the ratio is 70%. This is purely an arithmetical example. In a real case, the correct wages, hours, jobs and statutory calculation rules must be applied.
Checking the medical assessment
Request the insurance doctor’s report. Read whether the doctor has correctly described your symptoms, treatment and daily functioning. Pay attention to the date to which the assessment relates. An up-to-date description of your health is important, but your objection must also make clear which limitations existed on the relevant date.
Check whether the report is consistent with the information from your treating practitioners. Is a specialist’s letter missing, has a diagnosis been summarised incorrectly, or does the report state that treatment has been completed while it is still ongoing? Identify the specific passage and add the relevant supporting evidence. A general reference to your entire file makes the mistake less visible.
Describe your symptoms in terms of functioning. Think of how long you can sit, how much recovery you need after exertion and what happens when you need to concentrate or work under time pressure. Do not give invented maximum figures to make your case look stronger. An honest, consistent description is easier to verify than a firm answer that later does not fit with other information.
Understanding the Functional Capabilities List
UWV can record limitations in a Functional Capabilities List (Functionele Mogelijkhedenlijst), often abbreviated to FML. This covers various aspects of physical and mental functioning. The list forms a link between the medical assessment and the labour expert’s selection of jobs. An incorrect or missing limitation can therefore carry through into the jobs that are considered suitable.
Do not look only at the conspicuous physical sections. Personal functioning, social functioning, working hours, environmental factors and repetitive strain may be just as important. Someone may be able to carry out an action briefly but not repeat it often enough to get through a working day. It is precisely that duration and frequency that deserve attention.
An objection against the FML must be medically substantiated. Explain which part you believe is incorrect and which document or consistent observation supports this. The aim is not to tick as many limitations as possible, but to build an accurate picture of your capacity to work.
Examining the selected jobs
The labour expert matches your capabilities to jobs. Ask for the labour expert’s report and the associated job data. Check which demands occur in the work, such as lifting, standing, reaching, pace, working with others and dealing with stimuli. The job title alone says too little about the actual requirements.
A job that sounds ‘light’ may involve a high frequency of repetition or little autonomy. Conversely, an unfamiliar job may fall within your capabilities. So focus your response on specific demanding elements. Put the functional requirements next to your established limitations and state where, in your view, the comparison goes wrong.
Also pay attention to the reasoning given for flags or possible exceedances. If UWV explains why a particular aspect is nevertheless suitable, respond to that explanation. Merely noting that a flag is present does not automatically prove unsuitability. A match that is insufficiently reasoned can, however, be a relevant ground of objection.
Education, skills and working hours
In addition to medical demands, educational requirements and skills may be relevant. Check whether UWV is basing its assessment on diplomas or experience that you actually have. A completed course of study is different from a course you once started. Foreign diplomas must also be represented correctly, without automatically assuming an equivalent level.
Language skills require careful assessment. Not every language limitation makes all jobs unsuitable, but a job may have specific reading, writing or communication requirements. State which requirement applies and why you believe your situation does not match it. Do not leave it at the general statement that Dutch is difficult.
Working hours deserve separate attention where there is a medical limitation on hours or limitations regarding irregular shifts. Check how UWV has taken into account the number of hours and how they are spread over the week. A workload per hour that is considered suitable may still raise questions about the total length of the working week.
Also check the reference wage
An objection does not have to be solely about health. If the comparison wage or the scope of your former work has been established incorrectly, the incapacity percentage may also be incorrect. So collect payslips, contracts and information about structural allowances or hours.
Ask which wage period and which information UWV has used. Compare this with your actual situation before your illness. A discrepancy deserves an explanation, but not every wage component is processed in the same way. Moreover, the labour expert’s reference wage and the daily wage used to calculate the benefit serve different purposes.
For each discrepancy you find, write down what applies according to UWV, what is correct according to your documents and why that could change the result. An overview of three specific differences is often more useful than a folder of unsorted salary data.
Lodging an objection without missing the time limit
Read the notice of legal remedies in the decision straight away. For an EZWb termination the ordinary time limit of six weeks usually applies, but for other decisions under the Sickness Benefits Act the time limit may be two weeks. If you are unsure which decision you have received, have this assessed immediately. UWV’s explanation of objection periods identifies this important difference.
If the reports are still missing, a provisional objection can help to safeguard the time limit. State clearly the decision you are objecting to and ask for the file and an opportunity to supplement the grounds. Then keep track of the additional period. A pro forma objection is the start of the procedure, not the complete substantiation.
Organise the grounds by subject: medical limitations, jobs, wage calculation, start date and procedural points. Each time, explain what you want to see changed. An objection does not have to be angry or complicated to be strong on the merits.
Medical information and an independent expert
Sometimes additional information from your treating practitioner is enough to resolve a misunderstanding. In other cases there is a substantive medical difference of opinion that calls for further expertise. First determine which question remains unanswered. An expensive report without a clearly defined question does not help in itself.
An expert must have the relevant documents and know the correct assessment date. Discuss whether a review of the file is sufficient or whether the expert needs to carry out an examination. Ask in advance about the costs, the delivery time and the scope of the report. The outcome may also be less favourable than hoped.
Reimbursement of expert costs is not automatically guaranteed. Discuss in advance how necessity, reasonableness and a possible award of legal costs are assessed. For general background, you can also read about challenging an incapacity percentage.
What happens to your income during the objection?
An objection does not, in principle, suspend the termination. So check the exact last day of your benefit and ask which payment is still to follow. Find out in good time whether WW (unemployment benefit) or social assistance benefit is possible and which application is needed for it. State that you are disputing the termination of your sickness benefit.
Applying for another benefit does not mean that the objection is superfluous. However, it must be made clear which entitlements are being invoked and which medical limitations you continue to report. Different forms may ask different questions; make sure your answers remain factually consistent.
In cases of serious financial hardship, interim relief (a voorlopige voorziening) may be considered. This requires suitable pending proceedings, urgency and substantiation. Collect current bank details, fixed expenses and correspondence about payment problems. A terminated benefit does not in every situation lead to an urgent application that will be granted.
Fictitious example: suitable work with too much repetition
A former warehouse worker has long-standing shoulder problems. UWV considers lighter production work to be possible. The job title seems less demanding than the old work, but the description shows that the same arm movement is frequently required throughout the day. The client believes that it is precisely repetition that is the problem.
The objection then focuses on two questions. Has the limitation for repeated arm movements been correctly recorded in the medical assessment? And do the actual demands of the job fall within that limitation? A recent letter from the treating practitioner may be relevant if it says something about capacity on the assessment date.
This example is fictitious. A job is not automatically ruled out because the client experiences symptoms. The specific demands, the medical substantiation and UWV’s response must be assessed together. That makes a targeted review of the file necessary.
After an unfavourable decision on the objection
If UWV maintains the termination, read the new medical and labour expert reasoning. Sometimes jobs have been replaced or limitations adjusted while the outcome remains the same. The notice of appeal must then also address that new reasoning. Simply resubmitting your original objection may miss important changes.
Check the time limit for appeal and seek advice on the remaining points of dispute. Proceedings before the district court may be worthwhile if specific mistakes or insufficiently substantiated conclusions remain. Also discuss the costs, the expected duration and what a favourable judgment could achieve in practice.
A new deterioration in your health may, in addition, call for a different report or application. Distinguish between the incorrectness of the old decision and a situation that arose later. Both may deserve attention, but they do not have to be dealt with through the same procedure.
From medical limitation to a specific objection to a job
An objection against the EZWb becomes easier to assess if you describe, job by job, where the demands conflict with your limitations. Simply saying that you cannot do production work does not yet show which element you believe is unsuitable.
Start with a specific task. Do you have to reach frequently, stand for long periods, maintain a high work pace or have little opportunity to change position? Then look up the capacity UWV has established on that point. If it is precisely that capacity you are disputing, additional medical substantiation is needed.
| Question | Information to look for |
|---|---|
| Which action causes problems? | The task description and frequency in the job data. |
| Which limitation has been established? | The relevant part of the Functional Capabilities List. |
| Where do you think the difference lies? | A specific comparison of duration, intensity or opportunities for recovery. |
| Has UWV explained the difference? | The labour expert’s explanation of a possible exceedance. |
Keep your own former job and the selected example jobs separate. The fact that you cannot manage your old work does not in itself prove that no other job is possible. Conversely, UWV must give sufficient reasons why the jobs used fall within the established capabilities.
Also discuss cumulation: various tasks that are light in themselves may together create a strain that requires attention. Describe how long the activities take place without a break and which opportunities for rest actually exist. A simple preference for other work is not a medical objection, but a demonstrable limitation can justify a targeted reassessment.
Making fluctuating capacity clear
An assessment takes place at a particular moment, while your symptoms may fluctuate. So do not describe only your best or worst day. Give a representative picture of activities, recovery and the frequency of your limitations.
A short diary can help to structure your explanation. Note which activity you carried out, how long you managed it and what recovery was needed. The diary does not replace a medical assessment, but it can clarify the practical significance of your symptoms.
Also explain why one successful activity does not necessarily mean that you can repeat it throughout a working day. The duration and regularity of the strain may be important. Discuss with your treating practitioner which existing medical information can support these differences.
Frequently asked questions about the EZWb
Can UWV stop my sickness benefit while I am still ill?
Yes, it can. After the first year of illness, it is not only the presence of symptoms that is decisive, but also the earning capacity remaining under the statutory standard. You should therefore check both the medical and the labour expert substantiation of the decision.
Do I actually have to be offered one of the jobs mentioned?
The assessment can be theoretical. It is then about what you could earn in the jobs considered suitable. The absence of a specific job offer is therefore not in itself enough to make the termination incorrect.
Is the time limit always six weeks?
No. For an EZWb decision the time limit is usually six weeks, but other decisions under the Sickness Benefits Act may have a time limit of two weeks. Read the letter straight away and, if in doubt, have it determined which legal remedy applies to your decision.
Does a statement from my GP help?
Factual medical information can help, particularly if it clarifies a missing or incorrect part of the assessment. A short statement that you are ill is usually less useful than information about limitations, treatment and the relevant period.
Can I apply for WW and still lodge an objection?
Both can be relevant side by side. Do have it assessed how your statements and obligations fit together. State clearly that you are disputing the termination of your sickness benefit and report your actual limitations in the correct way.
What should I take to a lawyer?
Bring the decision, the medical report, the FML, the labour expert’s report and relevant treatment information. Add wage information if the calculation may be incorrect. Above all, state the date on which the benefit stops and when the objection period ends.
Having your EZWb decision assessed
A careful objection links your symptoms to specific limitations, jobs and amounts. Arslan Advocaten can assess your UWV decision. Via the contact page you can submit your documents and discuss the options. If a time limit is approaching, do not wait until your medical file is entirely complete.
Read also
Engaging a medical expert in a UWV case: when does an expert report help?
Benefit stopped and no income during the objection: interim relief against UWV
UWV has calculated your daily wage incorrectly: checking and objecting
