A complainant contacted the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) citing problems with the Health Insurance Institute of Slovenia (ZZZS). The complainant initially received a decision from a designated doctor (the first decision), which determined that he was fit to work from 31 May 2025 onwards. In his opinion, this decision was incorrect, which is why he filed a timely appeal. The ZZZS did not decide on it within the prescribed period, but the designated doctor issued a new, second decision, which partially replaced the first decision. Only then did the ZZZS Medical Commission decide on the appeal and grant it, but did not recognise the complainant's legal representation costs. The complainant believed that this was incorrect and illegal conduct, which is why he forwarded the complaint to the Ombudsman.

The Ombudsman conducted an inquiry into the ZZZS during the procedure and highlighted several problems. First, the Ombudsman pointed out the inconsistency of the first decision with the regulations. According to the provisions of Article 81 of the Health Care and Health Insurance Act (ZZVZZ), the appointed doctor has the authority to decide on temporary incapacity for work, but not to declare the insured person "capable of work" from a certain date onwards. In the Ombudsman's opinion, such diction is unlawful, and in addition, the first decision did not contain a full explanation, as required by Article 214 of the General Administrative Procedure Act (ZUP).

The second decision was problematic for the following reasons. It stated that it partially replaced the first decision, but without explaining in which part and why. In the Ombudsman's opinion, such a replacement was without legal basis, as it concerned new facts and new documentation (evidence) that had arisen after the first decision had been issued, which should have been the subject of an independent assessment. This created legal confusion, as it was not clear which decisions were valid.

The third set of comments concerned the decision of the Medical Commission, which decided on the appeal. The operative part of the decision did not clearly state why the appeal was upheld, nor was the decision formulated in accordance with Article 246 of the ZUP, which determines the possible ways of decision-making by a second-instance body. The Ombudsman therefore warned that this was a deviation from the legally permissible options, which threatens the principle of legal certainty.

The most controversial issue, however, concerned the costs of the procedure. The Medical Commission rejected the request for reimbursement of the costs of the complainant's legal representation, explaining that the procedure was not initiated ex officio. The Ombudsman did not agree with this, and pointed out that the decision-making of the appointed doctor is based on the proposal of the personal physician and therefore ex officio, since the personal physician does not file a request on behalf of the patient, but merely provides a professional proposal. Such procedures do not concern the independent right of the insured person, but rather the supervisory procedure of the Health Insurance Institute over the temporary suspension from work. If the insured person wishes to appeal, they must do so in order to protect their rights, and therefore the costs should be recognised, especially given the fact that he was successful in the appeal procedure. In doing so, the Ombudsman also referred to the case law of the Higher Labour and Social Court.

In its response, the ZZZS defended its positions. Regarding the first decision, it stated that the appointed doctor may, in accordance with the legislation, end the temporary suspension by setting a date for returning to work. They admitted that the explanation was inadequate and added that the authority encourages officials to provide more detailed explanations. Regarding the second decision, they agreed that there is indeed no basis in the ZUP for replacing the first decision, but they asserted that such a practice is used to resolve cases more quickly. As for the costs of representing the initiator, they referred to the provisions of the ZZVZZ and case law, which allegedly confirm their position that the costs are not reimbursed to the party (complainant).

In conclusion, the Ombudsman stressed that the appointed doctor should have decided with the first decision only on the personal doctor's proposal for temporary absence from work until a certain date and, in case of disagreement, issued a negative decision. The fact that he decided that the insured person is capable of work from a certain date onwards is illegal and contrary to the powers, since only the personal doctor can reopen the "sick leave" after that date. In doing so, the ZZZS interfered with the legal security of the complainant and jeopardised his social security.

The complaint was thus justified. The Ombudsman concluded that in the case at hand, the ZZZS violated the ZUP, the ZZVZZ, and the principle of legal certainty from Article 2 of the Constitution of the Republic of Slovenia. The Ombudsman recommended that the ZZZS ensure legal and clear decision-making in the future, respect the procedural guarantees of the parties, make decisions within the legal deadlines, and eliminate practices that cause legal uncertainty and harm people's trust in the work of public institutions. 9.3-13/2025