Violation of the right to be heard in the conduct of sound emission measurements without the participation of the insured

Facts

M., born in 1927, was employed as a laborer in the metal window construction department of company X AG until his retirement on August 31, 1992. On October 7, 1992, he reported a hearing impairment to the Swiss Accident Insurance Fund (SUVA). SUVA then conducted sound emission measurements at the insured's former workplace on June 23, 1993, without involving him. Based on the medical assessment, SUVA rejected the obligation to provide benefits in a decree dated August 23, 1993, which it confirmed in an objection decision dated October 1, 1993.

M. filed a complaint with the Insurance Court of the Canton of Zurich and, among other things, alleged a violation of his right to be heard, as SUVA had not given him the opportunity to be present during the noise measurement. The Insurance Court dismissed the complaint, as there was no right to a hearing before the decree was issued.

M. then filed an administrative court appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court held that SUVA should have involved the complainant in the sound emission measurements, as they constituted an essential piece of evidence for the assessment of the claim for benefits. The conduct of the inspection without the participation of the insured violated his right to be heard.

The Federal Supreme Court explained that the right to be heard generally also includes the right to participate in the collection of essential evidence or at least to comment on the evidence, if it is capable of influencing the decision. This applies in particular to the conduct of an inspection, to which the person concerned must be involved, unless exceptionally worthy interests of third parties or the state or a special urgency prevent this.

In the present…