Area: Poslovni SOS
Competent authority: MDDSZ
EZU URL: .nan
Initiative ID: 559
Initiative accepted and completed: '2015-05-22'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2015-05-12'
Initiative published: '2015-05-12'
Initiative submitted: '2015-05-11'
Response from the competent authority: 'RESPONSE FROM THE MINISTRY OF LABOUR, FAMILY,
  SOCIAL AFFAIRS AND EQUAL OPPORTUNITY: The applicant describes the difficulties he
  faces as an employer due to what he considers to be excessively lengthy procedures
  for determining disability and the rights that may accrue to the insured person
  as a result. He considers that the retrospective recognition of rights is inappropriate,
  as it puts employers in the unenviable position of not knowing how to deal with
  the rights of workers with a recognised right to a disability between the time when
  the first instance decision is issued and the time when the final decision in the
  case is issued. The specific case of a worker who, by the first-instance decision,
  has been granted a Grade III disability with the right to transfer to another post,
  which, according to the applicant, the latter cannot guarantee her, is highlighted.
  The applicant does not understand why the arrangements cannot remain the same as
  they were before the first instance decision, namely that the worker continues to
  work in her current post for 4 hours, with 4 hours of sick leave.With regard to
  the proposal submitted from the point of view of pension and invalidity insurance,
  it is clarified that the rights under this insurance are decided or exercised in
  accordance with the law governing the general administrative procedure, unless there
  is an obligation to do so under the Law on Pension and Invalidity Insurance (Official
  Gazette of the Republic of Slovenia, No................................................................
  96/12, 39/13, 99/13 - ZSVarPre-C, 101/13 - ZIPRS1415, 44/14 - ORZPIZ206, 85/14 -
  ZUJF-B and 95/14 - ZUJF-C, hereinafter referred to as ZPIZ-2)). The ZPIZ-2 specifically
  regulates the right to initiate proceedings to claim rights under the compulsory
  invalidity insurance, i.e. a proposal to initiate proceedings may be submitted,
  in addition to the insured person, by the insured person''s personal physician or
  a designated doctor, or, in agreement with the personal physician, by an occupational
  health care provider as well.The ZPIZ-2 also provides for the right to initiate
  proceedings to claim rights under the compulsory invalidity insurance. The duration
  of the procedure itself is also subject to specific rules, since the institution
  must issue a decision within four months of the date on which the procedure is initiated
  (when the institution receives the request, together with the insured person''s
  complete work record and medical documentation on his/her state of health and ability
  to work). The time limit for issuing a decision is thus longer than that laid down
  by the general rules (2 months from receipt of the application), bearing in mind
  that, in cases where the insured person''s disability and the rights based on it
  are established, the expert opinion of the institution''s expert bodies must be
  obtained in order to decide the case itself. As regards the time-limit for appeal
  itself, we note that there are no specific provisions in the ZPIZ-2, which means
  that the institution is obliged to issue a decision at second instance within two
  months of receipt of the appeal. With regard to the procedure, it is also provided
  that a decision granting rights on the basis of disability categories II and III
  becomes enforceable from the date of its finality. With regard to the previous paragraph
  and the proposal to shorten the procedures, we would like to clarify that the amendment
  to the legislation that entered into force in 2013 reduced the time-limits for issuing
  a first-instance decision. Under the legislation previously in force, the institution
  was obliged to issue a decision within six months of the submission of an application
  with complete medical documentation. No further reduction of the statutory time
  limits is envisaged, as the procedure must take into account that the decision itself
  requires the opinion of the disability commission, which to a certain extent prolongs
  the procedures and makes longer time limits than those generally envisaged reasonable
  and justified. With regard to the recognition of rights themselves, it should be
  clarified that the rights which an individual may obtain under the sickness insurance
  scheme and the rights which are linked to an individual''s disability under the
  disability legislation cannot be equated. In fact, the rights under the sickness
  insurance scheme are linked to the conditions laid down by the sickness legislation
  and to the specific job occupied by the insured person. However, the determination
  of disability under the PIPZ-2 is not merely linked to the limitations on the insured
  person''s capacity to work in the particular job he or she holds, but is established
  when, as a result of changes in the state of health which cannot be remedied by
  treatment or medical rehabilitation measures and which are established in accordance
  with the PIPZ-2, the insured person''s capacity to work is reduced in order to secure
  or maintain a job or to advance in his or her career. The conditions differ under
  the two laws, but there is a fundamental difference between them, in that health
  rights are generally temporary rights, where the insured person is temporarily unable
  to perform his/her work, whereas pension rights are permanent limitations that can
  no longer be remedied by medical treatment or medical rehabilitation measures. The
  conditions for the acquisition of the rights themselves differ accordingly, and
  it cannot be assumed that an insured person who works four hours a day in accordance
  with the medical regulations will also be entitled to the same restriction under
  the invalidity legislation. In the course of the proceedings, the insured person''s
  continued ability to work is determined.We would also like to clarify that the decision
  on entitlement to a transfer to another post is only implemented once a final decision
  has been issued, i.e. once a decision on the right in question has already been
  issued at second instance, even though disability rights under Article 3(3)(b) of
  the Staff Regulations are not subject to the same conditions as those under Article
  3(3)(a) of the Staff Regulations. Article 180(2) of the Social Insurance Act (ZPIZ-2),
  as from the date on which the disability arose, or, in the case of a change in the
  state of disability, as from the first day of the month following that in which
  the change arose, in accordance with Article 126(2) of the Social Insurance Act
  (ZPIZ-2). In our view, until the date of finality, the decision establishing the
  invalidity and the right to transfer has no effect or is in force but not yet enforceable,
  and the employer has no obligations on that basis, nor can the employee claim the
  rights conferred on him by the first-instance decision until the decision itself
  is enforceable. The insured person may also be granted health insurance benefits
  in the meantime, if he or she fulfils the conditions for such benefits, and we would
  therefore like to clarify that nothing changes for the employer or the employee
  in the meantime; the decision is issued, but no benefits can be claimed on the basis
  of it until it is final. Given that, by the very nature of things, the employer
  cannot retroactively transfer the worker to another post after the decision has
  become final, we would like to clarify that the employer is obliged to provide the
  worker with a suitable post as from the date of the final decision.In view of the
  above, we consider that it would not make sense to establish shorter procedures,
  since the institution would not be able to issue decisions within a shorter time
  limit, which would mean that the instruction time limits laid down by law would
  be exceeded several times. We would also like to clarify that this year the Ministry
  of Labour, Family, Social Affairs and Equal Opportunities is planning to issue or
  prepare a White Paper on pension and invalidity insurance, which will provide an
  overview of the current pension and invalidity insurance system, as well as possible
  future arrangements for the system, and will also review the adequacy of the invalidity
  insurance system in this context. Should the need for change and adaptation to the
  new social situation be identified, further action will be taken to amend the legislation
  in the direction identified.'
Text file: 559.txt
Title: Issuing retroactive ZPIZ decisions
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=559
