Disputing a medical opinion and the shortage of labor inspector doctors.

Industrial tribunals can appoint a medical expert to the Court of Appeal.   In legal terms, it should be remembered that the Labour Code allows an employee or an employer to take a case to the industrial tribunal under the accelerated procedure on the merits of a dispute relating to the opinions, proposals, written conclusions or indications issued by the occupational physician (article L. 4624-7 of the Labour Code).   In the context of such proceedings, the industrial tribunal may thus entrust any investigative measure to the territorially competent medical labour inspector in order to enlighten it on the factual issues falling within its remit. If the medical labour inspector is unavailable or is challenged, the industrial tribunal ruling under the accelerated procedure on the merits may appoint a medical labour inspector other than the one with territorial jurisdiction (article R. 4624-45-2 of the Labour Code). In fact, and in practice, labour tribunal members are often reluctant to rule on the validity of a medical opinion, considering that they do not have the necessary expertise to rule on an employee’s state of health. So, in most cases, they appoint a medical labour inspector to advise them. However, the shortage of overworked medical inspectors is seriously undermining this procedure. As a result, they have been given the option of appointing a medical expert to the Court of Appeal, whose fees are considerably higher (€200 for a medical inspector compared with €1,200 or more for a medical expert to the Court of Appeal). This can represent a significant cost for an employer faced with a large number of inconsistent medical opinions, such as recommending teleworking for a driver-receiver… In a case that went all the way to the Court of Cassation, the Moulins industrial tribunal found itself faced with just such a difficulty, which it circumvented by appointing an expert doctor to the Court of Appeal (Cass. Soc. 22 May 2024, no. 22-22.321 – decision published in the bulletin). In this case, an employee working as a customer assistant in a bank branch had been declared unfit for his position by the occupational physician following a return visit. The opinion stated that his state of health prevented him from being reassigned to another job, and therefore referred to the cases of exemption from the obligation provided for in the Labour Code. Eight days after the notice was issued, the employee appealed to the Moulins industrial tribunal, seeking in particular to have the notice of unfitness quashed. The industrial tribunal then appointed a regional labour inspector to issue a report to advise the judges. By a new order, the court was obliged to appoint a new doctor in his place, it being specified that this was an expert doctor reporting to the Court of Appeal. This doctor was not registered as an expert in health medicine or occupational medicine, did not have the title of occupational physician, nor did he have any special accreditation, diploma or qualification in health or occupational medicine. He issued a report stating that the medical evidence did not justify the employee’s unfitness for work. The Labour Court therefore followed this opinion and ruled that the opinion of the expert doctor thus appointed superseded the opinion of unfitness issued by the company doctor. The company then appealed against this decision to the Riom Court of Appeal, arguing that the appointment of the new doctor was perfectly questionable in that he had been appointed as a general practitioner and was not legally competent or authorised to carry out the expert assessment requested by the industrial tribunal. The appellant company also added that it could only legally appoint another labor inspector doctor if the territorially competent one was unavailable. The Court of Appeal of Riom rightly noted that “as unfortunately now happens recurrently, the labor court found no labor inspector doctor willing to undertake the investigative measure provided for by Article L. 4624-7 of the Labor Code […] Faced with this deadlock, the judge in charge of overseeing the ‘expertise’ ordered on September 29, 2020, decided, by order of March 31, 2021, to appoint Dr. [H] [R] as an expert.” The court continued its reasoning as follows: “Labor courts, as well as the social chambers of the court of appeal, regularly find that it is sometimes impossible to find, within the national territory, due in particular to the shortcomings affecting state services, a labor inspector doctor who agrees to carry out the investigative measure provided for by Article L. 4624-7 of the Labor Code. In this case, it is undisputed that the labor court faced refusals, or silence amounting to refusals, from all the labor inspector doctors approached. It is impossible for a judicial judge to justify a denial of justice due to a lack of resources, even if such a situation is not attributable to them. Consequently, notwithstanding the provisions of the Labor Code, which do not expressly prohibit the use of an expert who is not a labor inspector doctor, the labor court judge who finds it impossible to appoint a labor inspector doctor to carry out the investigative measure provided for by Article L. 4624-7 of the Labor Code must rule on the challenge to the occupational physician’s opinion submitted to them, whether without an investigative measure or after conducting an expert examination entrusted to a doctor not qualified or authorized in occupational medicine or occupational health to shed light on the factual question of the employee’s state of health. Moreover, the recourse provided for by Article L. 4624-7 of the Labor Code is designed to elicit a prompt judicial response (accelerated procedure on the merits) to a dispute regarding the opinions, proposals, written conclusions, or indications issued by the occupational physician based on medical evidence. In this case, the notice of unfitness was issued on July 1, 2020, a dismissal for unfitness was subsequently notified on August 4, 2020, and, due to the lack of resources of state services and the lack of predictability of the legislator concerning the means that could be allocated to the numerous social law reforms that follow one another at an increasingly rapid pace, the labor court of MOULINS, seized since July 9, 2020, was still in March 2021 unable to appoint a labor inspector doctor. Thus, the labor court judge is often confronted in this matter with the issue of a reasonable timeframe.” Under these circumstances, the Court of Appeal concluded that there was no reason to annul the expert report of the second doctor for violation of the law. The Social Chamber of the Court of Cassation—seized on appeal by the company—upheld this reasoning, finding that “in light of its findings characterizing the unavailability of labor inspector doctors, the court of appeal correctly deduced that another doctor could be appointed” after recalling the right to be judged within a reasonable timeframe and the necessity for the judge to ensure the swift conduct of the trial (ECHR, June 8, 2006, No. 75529/01). The decision of the High Court is clearly motivated by the need to ensure the speed of justice. This position contrasts with that of the Ministry of Labor, which considers that in the event of a further refusal or unavailability, the judge may appoint an expert from the list of court-appointed experts, provided they have qualifications in occupational medicine (without the need for them to be specifically listed under the “occupational medicine” category) (https://travail-emploi.gouv.fr/sante-au-travail/suivi-de-la-sante-au-travail-10727/article/recours-contre-un-avis-d-inaptitude). In conclusion, while it is undeniably preferable for a doctor qualified in occupational medicine to be involved, the position of the Court of Cassation has the advantage of preventing a deadlock in the event of a shortage of labor inspector doctors. It also allows for a swift decision from the labor court, which is crucial, especially when an employer is faced with temporary medical opinions valid for only a few months, making a rapid judicial response even more necessary.