Facts
A., born in 1972, has been receiving a full disability pension from the Disability Insurance since March 1, 2000, due to a traffic accident in March 1999. The Pension Fund B. also paid her a full disability pension from occupational benefits. After the accident, A. worked in a greatly reduced capacity of 10% with her previous employer.
In a letter dated July 18, 2007, the Pension Fund first calculated the overcompensation and considered an income of around CHF 10,300 net. On October 24, 2008, A. and the Pension Fund concluded an agreement on the "repayment of the pension due to overinsurance". The employment relationship was terminated as of December 31, 2008.
In a lawsuit filed on December 18, 2015, A. requested that the Pension Fund be obliged to perform a new calculation of the overcompensation retroactively as of January 1, 2009. The Cantonal Court of Fribourg dismissed the claim.
Considerations
The Federal Supreme Court states that the loss of the job at the end of 2008 represents a legally relevant change in the facts and thus a calculation factor for the overcompensation. However, the lower court wrongly assumed that a hypothetical earned income should be taken into account in the case of a remaining work capacity of only 10%.
According to case law and literature, in the case of such a low remaining work capacity, the unusability of this capacity is generally to be assumed. Therefore, as a…