What is meant by decision of the medical expertise bodies by which the physical and / or mental incapacity of the employee is ascertained

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.