Consideration of the presumed income from self-employment in the calculation of overcompensation

Facts

The dispute concerns the entitlement to disability benefits under the OPA. It is established that the appellant is entitled to a full disability pension from November 1990. The cantonal court denied the obligation of the pension fund to pay benefits from November 1990, on the grounds that the disability insurance and accident insurance benefits would exceed 90% of the presumed lost earnings of the insured. While the cantonal court, the pension fund and the FSIO consider that the income from self-employment as a secondary activity does not form part of the presumed lost earnings, the appellant argues the contrary.

Considerations

The Federal Social Insurance Court considers that, according to an interpretation in accordance with the text, the systematics and the objectives of the law and the ordinance, the presumed lost earnings within the meaning of Art. 24 para. 1 OPO 2 also include uninsured income from self-employment. This interpretation is justified in particular by the fact that occupational pension provision, together with old-age, survivors' and disability insurance, aims to enable the maintenance of the usual standard of living in an appropriate…