Facts
[M.], born in 1959, had been employed as a field service employee at General Insurance X. since 1994. From 2004 onwards, he switched to Personal Insurance X. and was insured there against the consequences of accidents and occupational diseases. On September 19, 2004, he suffered severe brain injuries in a bicycle accident. Generali General Insurance acknowledged its obligation to provide benefits, paid daily allowances, and covered the medical treatment. Since September 2005, [M.] has been receiving a full disability pension from the Disability Insurance.
The dispute concerned the assessment of the insured earnings for daily allowance benefits and the determination of the presumed lost earnings as an essential factor in the calculation of overcompensation. Generali calculated the insured earnings and the presumed lost earnings based on the income in the last six months before the accident at Personal Insurance X. and in the last six months before the accident at General Insurance X.
Considerations
The Federal Court held that Generali and the lower instance correctly applied Art. 23 Para. 3 OASI, as the complainant's salary was subject to significant fluctuations. The calculation of the appropriate average salary based on the income in the six months before the accident at Personal Insurance X. and the six months prior at General Insurance X. was not to be criticized.
Generali's calculation of the presumed lost earnings was also not to be criticized. It was justified to take into…