Adjustment of the insured income in case of health-related impairment of earning capacity

Facts

P., born in 1947, was employed as a customer mason at the company B. from 1 March 1976 to 31 December 2001. On 25 June 2002, he applied for unemployment compensation and stated that he was willing and able to work part-time, up to a maximum of 50% of full-time employment. The unemployment insurance fund paid him unemployment benefits for the months of July to November 2002, based on an insured income of CHF 2,641. After P. had registered for benefits with the IV (Disability Insurance), the IV office of the canton of Solothurn awarded him a half disability pension, effective 1 April 2001, based on a degree of disability of 61%. The unemployment insurance fund then reduced the insured income accordingly, based on the degree of disability, to CHF 2,060 and demanded the repayment of overpaid daily allowances in the amount of CHF 1,500.40 for the months of August to November 2002. The cantonal court overturned the repayment order, whereupon the unemployment insurance fund filed an administrative court appeal.

Considerations

The Federal Court states that according to Art. 40b FSCA, an adjustment of the insured income is provided for in exceptional cases if a health-related impairment of earning capacity occurs immediately before or during unemployment. This is the case if the loss of performance has not yet been reflected in the wage, which, according to Art. 23 para. 1 AVIG in conjunction with Art. 37 FSCA, forms the basis for the assessment of the insured income. In the present case, the insured person had been employed in the same company for over 20 years when health problems arose from 29 April 2000 onwards, increasingly impairing his ability to work.…