Determination of the insured salary when the insured's earning capacity was already reduced before the accident

Facts

The dispute concerns the determination of the insured salary of the respondent, who had suffered a reduction in his earning capacity prior to the accident due to illness. The respondent suffered an accident on 11 April 1987 while he had already been receiving a disability pension from the disability insurance (AI) since 1 March 1987, following an illness that occurred on 19 March 1986 (lumbovertebralsyndrome) which had forced him to completely cease work until the end of December 1986. During this period, he received daily sickness benefits.

The lower authority applied Art. 24 para. 5 of the Ordinance on Accident Insurance (OLAA) to determine the insured salary, on the grounds that the respondent was considered a disabled person with reduced earning capacity within the meaning of the disability insurance. However, the Federal Tribunal considers that this provision is only applicable when the reduction in earning capacity due to disability has played a predominant role in the reduction of the insured's salary during the year preceding the accident. In the present case, the reduction in salary was rather due to the respondent's illness during 11 of the 12 months preceding the accident, and not to his disability within the meaning of the disability insurance.

Considerations

According to the Federal Tribunal, the respondent's case is governed by Art. 24 para. 1 OLAA, which provides that the insured salary must be determined on the basis of the salary the insured would have received if he had not been ill. This provision aims to prevent the insured salary from being too low due to particular circumstances that have affected the insured's income during the year preceding the accident.