Regarding
the procedure for ascertaining the employee's incapacity, the Labor Code
provides in art. 61 lit. c) the fact that it takes place by decision of the
competent bodies of medical expertise.
In
recent jurisprudence, especially by ICCJ Decision no. 7/2016 regarding the
pronouncing of a preliminary decision regarding the interpretation of the
provisions of art. 61 lit. c) of Law no. 53/2003, it was appreciated that,
“although the normative act does not expressly determine the medical expertise
bodies that ascertain the physical and / or mental incapacity of the employee,
the specific legislation in the field of workers' health surveillance will be
taken into account first of all ( Government Decision No. 355/2007, as
subsequently amended and supplemented, and Law No. 418/2014, as subsequently
amended and supplemented), which states that the occupational medicine
specialist, by the given opinion, is the one who has the right and obligation
to determine whether the employee is medically fit or unfit for a particular
position.
Thus,
from the interpretation of the provisions of art. 8 of Law no. 418/2014, with
subsequent amendments and completions, corroborated with the provisions of art.
8 and 9 of the Government Decision no. 355/2007, with the subsequent
modifications and completions, previously presented, results that the
occupational medicine doctor is the specialized body that establishes the
physical and / or mental aptitude of the employee for a certain job.
In
addition to the medical examinations he performs at work, periodically or at
the resumption of activity, the occupational medicine doctor may request other
specialized investigations, the final decision following these medical
examinations belonging to the occupational medicine specialist.
This
solution also results explicitly from the provisions of art. 12 of the
Government Decision no. 355/2007, as amended and supplemented by Government
Decision no. 1,169 / 2011, corroborated with the provisions of art. 22 lit. e)
and art. 30 of the same normative act.
Unlike
the initial form of art. 12 of the Government Decision no. 355/2007, which
provided in par. (2) that "All cases of permanent medical incapacity will
be resolved by occupational physicians in collaboration with physicians of work
capacity expertise, who will inform each other on the resolution of the factual
situation", following the amendment by Government Decision no. 1,169 /
2011, para. (2) in art. 12 was repealed, so that, according to the legal
regulations in force, the only body specialized in issuing and completing the
employee's aptitude card remained the occupational medicine doctor.
Also,
the occupational medicine doctor has the competence to propose to the employer
the change of job, according to art. 189 para. (2) of the Labor Code, stage
prior to dismissal based on incapacity, according to art. 64 para. (1) of the
same normative act.
Another
argument taken into account when defining the phrase “decision of the medical
expertise bodies” concerns the procedure of contesting the medical conclusions
of the occupational medicine specialist, included in the act drawn up at the
examination, procedure provided in art. 30-33 of the Government Decision no.
355/2007, with subsequent amendments and completions.
Thus,
according to art. 30 and 31 of the mentioned normative act, the examined person
may contest the result given by the occupational medicine specialist regarding
the work aptitude, the appeal addressing the county public health authority or
the Bucharest municipality, within 7 days from the receipt of the aptitude for
work.
The
appeal is solved by a commission composed of 3 occupational medicine doctors,
which convenes the parties involved within 21 days from the date of receipt of
the appeal, according to art. 32.
The
decision of the commission shall be recorded in a report and shall be
communicated in writing to the medically examined person, according to the
provisions of art. 33.
The
analysis of the arguments set out above shows that it is sufficient for the
aptitude file to be drawn up by the occupational physician, uncontested by the
worker, stating that the employee no longer has the necessary aptitude for the
post occupied, and, not having vacancies compatible with his aptitude for work,
under the conditions of art. 64 para. (1) and (2) of the Labor Code, the
employer will proceed to dismiss the employee based on the provisions of art.
61 lit. c) of the Labor Code.
The
same conclusion is valid in the hypothesis in which the evaluation made by the
occupational medicine specialist would be contested, and by the medical
decision pronounced under the conditions of art. 33 of the Government Decision
no. 355/2007, with the subsequent modifications and completions, the appeal of
the examined person would be rejected.
