Giuseppe Rindone v Allgemeine Ortskrankenkasse Bad Urach-Münsingen.
Date: 1987-03-12
9 IT MUST BE POINTED OUT THAT THE INTERPRETATION ADOPTED BY THE DEFENDANT AND THE UNITED KINGDOM TO THE EFFECT THAT MEDICAL FINDINGS MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE CANNOT BIND IN FACT AND IN LAW THE COMPETENT INSTITUTION IS JUSTIFIED NEITHER BY THE TERMS OF ARTICLE 18 OF REGULATION NO 574/72 NOR BY ITS PURPOSE .
10 ARTICLE 18 LAYS DOWN A PROCEDURE ACCORDING TO WHICH THE PERSON CONCERNED MUST :
( I ) EITHER SUBMIT TO THE INSTITUTION OF THE PLACE OF RESIDENCE A CERTIFICATE OF INCAPACITY FOR WORK ISSUED BY THE DOCTOR PROVIDING TREATMENT;
( II ) OR, WHERE THE DOCTORS PROVIDING TREATMENT IN THE COUNTRY OF RESIDENCE DO NOT ISSUE CERTIFICATES FOR INCAPACITY FOR WORK, APPLY DIRECTLY TO THE INSTITUTION OF THE PLACE OF RESIDENCE WHICH "SHALL FORTHWITH HAVE THE INCAPACITY FOR WORK MEDICALLY CONFIRMED AND THE CERTIFICATE ... DRAWN UP" ( ARTICLE 18 ( 1 ), ( 2 ), ( 3 )*).
11 ARTICLE 18 ALSO PROVIDES THAT IT IS FOR THE INSTITUTION OF THE PLACE OF RESIDENCE TO CARRY OUT ANY NECESSARY ADMINISTRATIVE CHECKS OR MEDICAL EXAMINATIONS ON THE WORKER AND TO ESTABLISH THAT THE WORKER IS FIT TO RESUME WORK "ON BEHALF OF THE COMPETENT INSTITUTION" ( ARTICLE 18 ( 4 )*). DIFFERENT RULES IN REGARD TO THE COMMENCEMENT AND DURATION OF INCAPACITY FOR WORK CANNOT BE JUSTIFIED BECAUSE IN BOTH CASES, IT IS THE SAME FACTS WHICH FALL TO BE ASSESSED BY THE INSTITUTION OF THE PLACE OF RESIDENCE IN ORDER TO ARRIVE AT A DECISION ON THE SAME CONCEPT, NAMELY THE WORKER' S INCAPACITY FOR WORK .
12 IT FOLLOWS THAT IT IS FOR THE INSTITUTION OF THE PLACE OF RESIDENCE TO DETERMINE THE COMMENCEMENT AND DURATION OF INCAPACITY FOR WORK AND THE COMPETENT INSTITUTION MERELY RETAINS THE POSSIBILITY OF HAVING THE WORKER EXAMINED BY A DOCTOR OF ITS OWN CHOICE ( ARTICLE 18 ( 5 )*).
13 THAT INTERPRETATION IS ALSO MADE NECESSARY BY THE PURPOSE OF ARTICLE 18 OF REGULATION NO 574/72 AND OF ARTICLE 19 OF REGULATION NO 1408/71 . IF THE COMPETENT INSTITUTION WAS FREE NOT TO RECOGNIZE THE FINDING OF INCAPACITY FOR WORK MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE, A WORKER WHO IN THE MEANTIME HAD ONCE AGAIN BECOME FIT FOR WORK COULD, AS THE NATIONAL COURT EMPHASIZES, HAVE DIFFICULTY IN PRODUCING THE NECESSARY PROOF . HOWEVER, IT IS PRECISELY THOSE DIFFICULTIES WHICH THE COMMUNITY RULES AT ISSUE ARE DESIGNED TO ELIMINATE . SUCH A SITUATION WOULD BE UNACCEPTABLE BECAUSE IT WOULD INTERFERE WITH "THE ESTABLISHMENT OF THE GREATEST POSSIBLE FREEDOM OF MOVEMENT FOR MIGRANT WORKERS, WHICH IS ONE OF THE FOUNDATIONS OF THE COMMUNITY" ( JUDGMENT OF 25 FEBRUARY 1986 IN CASE 284/84 L . A . SPRUYT V BESTUUR VAN DE SOCIALE VERZEKERINGSBANK (( 1986 )) ECR 693 ).
14 FINALLY, ATTENTION MUST BE DRAWN TO THE FACT THAT THE COMMUNITY RULES ON CASH BENEFITS PAID IN RESPECT OF ILLNESS AND ON CASH BENEFITS PAID IN RESPECT OF ACCIDENTS AT WORK AND OCCUPATIONAL DISEASES ARE ANALOGOUS : THE CONTENT OF ARTICLES 18 AND 61 OF REGULATION NO 574/72 IS THE SAME . IN A CASE RAISING QUESTIONS COMPARABLE TO THOSE AT ISSUE HERE, THE COURT DECIDED THAT A DIAGNOSIS THAT A PERSON IS SUFFERING FROM AN OCCUPATIONAL DISEASE MUST BE RECOGNIZED BY THE MEMBER STATE WHICH IS UNDER A DUTY TO PAY THE BENEFITS, EVEN IF THAT DIAGNOSIS WAS MADE IN ANOTHER MEMBER STATE AND IN ACCORDANCE WITH ITS LEGISLATION ( JUDGMENT OF 11 MARCH 1986 IN CASE 28/85 DEGHILLAGE V CAISSE PRIMAIRE D' ASSURANCE MALADIE (( 1986 )) ECR 999 ).
21 THE COURT CONSIDERS THAT THAT PROVISION MAY NOT BE INTERPRETED AS MEANING THAT THE WORKER MAY BE REQUIRED TO RETURN TO THE MEMBER STATE IN WHICH THE COMPETENT INSTITUTION IS SITUATED IN ORDER TO UNDERGO THERE A MEDICAL EXAMINATION WHEN HE IS UNABLE TO WORK OWING TO ILLNESS . SUCH AN OBLIGATION WOULD BE INCOMPATIBLE WITH DUE CONCERN FOR THE HEALTH OF THE WORKER . THE EXAMINATION IN QUESTION CAN BE CARRIED OUT BY THE COMPETENT INSTITUTION EITHER BY SENDING A DOCTOR TO EXAMINE THE WORKER IN THE MEMBER STATE IN WHICH HE RESIDES OR BY AVAILING ITSELF OF THE SERVICES OF A DOCTOR IN THE LATTER STATE . IF THE WORKER DOES NOT ACCEPT SUCH AN EXAMINATION, IT FOLLOWS FROM THE PROVISION AT ISSUE THAT THE COMPETENT INSTITUTION IS NOT BOUND BY THE FINDINGS MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE .