Adjustment of the Insured Earnings for Survivors' Pension after Retirement

Facts

[H.], a trained carpenter born on January 30, 1929, was employed as a non-self-employed worker until 1953 and was insured with the Swiss Accident Insurance Institution (SUVA), among other things, against the consequences of occupational diseases. From 1954 onwards, he worked as a self-employed person in his father's business, without voluntarily insuring himself with SUVA. In February 2005, [H.] was diagnosed with a right-sided pleural mesothelioma, which he had presumably contracted as a result of work-related asbestos exposure during his non-self-employed employment. [H.] died in September 2005 due to respiratory failure related to this condition.

SUVA acknowledged its obligation to provide benefits and, by decision of July 6, 2006, retroactively granted a survivors' pension to the widow of the deceased, [L.], in the amount of CHF 1,954 per month, based on a pension rate of 40%, effective from October 1, 2005. The relevant insured earnings were based on the last wage [H.] had earned as a non-self-employed worker (1953), adjusted for nominal wage increases up to the year of his retirement (1994).

[L.] argued that either the wage earned by the deceased immediately prior to retirement in the context of his self-employment should be used as the insured earnings for the calculation of the survivors' pension and adjusted for nominal wage increases up to the onset of the occupational disease, or the pension granted at the time of the onset of the occupational disease should be retroactively adjusted for inflation.

Considerations

The Federal Supreme Court decided that the relevant insured earnings for the calculation of the pension are the wages [H.] earned as an insured employee in 1953, adjusted for the general statistical development of nominal wages in his field of activity up to the time of retirement (January 31, 1994).

However, an adjustment of the thus determined insured earnings to the nominal wage development or inflation that occurred between 1994 and 2005 was rejected. The Federal Supreme Court justified this by stating that such an adjustment would lead to unequal treatment of insured persons…