Facts
V., born in 1953, concluded a daily allowance insurance for loss of earnings in case of illness with the Mutuelle Valaisanne, Health Insurance Fund. The insurance was subject to a 5-year reserve for "status after injury to the left brachial plexus". In July 1997, the Fund received a medical certificate indicating that V. was incapable of work due to reactive depression. The Fund then added a new retroactive reserve for "reactive depression", which V. contested.
The Insurance Tribunal of the canton of Valais dismissed V.'s appeal against this decision. V. then filed an administrative law appeal to the Federal Tribunal, concluding for the removal of the reserve for reactive depression and the payment of daily allowances.
Considerations
According to case law, the fund can only institute a subsequent reserve if the insured has committed reticence, i.e. if he has culpably concealed an existing or relapsing illness that he knew or should have known.
In the present case, the Federal Tribunal considers that the statements of the attending physician do not make it possible to establish with a preponderance of probability that V. was already receiving medical treatment or that such treatment was envisaged or foreseeable at the time the insurance was taken out. The fact that V. consulted a psychiatrist twice before taking out the insurance is not in itself indicative of an illness within the meaning of the…