Partially Disabled Insured Persons: Only Effectively Earned, Not Reasonable Earnings Are to Be Taken into Account in the Overcompensation Calculation

Facts

The case concerns a partial disability pension from the occupational pension scheme (BVG) for the hospitality industry. The respondent W. suffered an accident in 1990 and was 50% disabled. The BVG for the hospitality industry granted her a "complementary pension" of CHF 79 per month from 1993 onwards, but calculated this taking into account the pensions from the Disability Insurance (IV) and Accident Insurance, so that the pension was reduced.

W. filed a lawsuit against the reduction, and the Administrative Court partially upheld her claim. The BVG for the hospitality industry then filed an administrative court appeal with the aim of W. not being entitled to disability benefits.

Considerations

The Federal Court dismissed the appeal of the BVG for the hospitality industry. It decided that in the calculation of overcompensation in occupational pensions, only effectively earned, but not reasonably achievable, earnings are to be taken into account.

The Federal Court justified this as follows

• The clear wording of Art. 24 para. 2 last sentence of the BVV 2 only provides for the consideration of effectively earned, but not reasonably achievable, earnings.
• The materials on the ordinance show that the ordinance-maker consciously only wanted to take into account effectively earned income.
• There is no general legal principle that would require the consideration of reasonable incomes. The various social…