Facts
H., born in 1947, suffered a traffic accident on February 4, 1989, in which she sustained whiplash injury to her cervical spine. Since the accident, she has been receiving a disability pension from the accident insurance. However, the insurance company ELVIA reduced the disability pension, as it was of the opinion that the insured person's complaints were only partially accident-related and at least three-quarters were attributable to non-accident-related factors.
H. filed a complaint against the reduction of the disability pension. The Federal Supreme Court upheld her complaint and decided that a reduction of the disability pension based on Art. 36 para. 2 sentence 2 of the Accident Insurance Act (UVG) is not permissible. Although the insured person suffered from neurotic depression prior to the accident, this had never led to prolonged incapacity to work and thus had no disabling character. Therefore, the pre-existing mental health impairment cannot be used to reduce the disability pension.
Considerations
The Federal Supreme Court explains that according to Art. 36 para. 2 sentence 2 of the Accident Insurance Act (UVG), a pension reduction due to a pre-existing health impairment is only permissible if it had already led to (partial) incapacity to work prior to the accident. The decisive factor is whether the pre-existing condition caused a prolonged impairment of earning capacity and thus resulted in disability.
In the present case, the insured…