Claim for disability pension of a Yugoslav national who had to leave Switzerland due to a police order

Facts

M.B., born in 1932, a national of the former Yugoslavia, worked as a seasonal construction worker in Switzerland from 1971 to 1975 and from 1978 onwards, and paid contributions to the Swiss social insurance system during this time. On 4 July 1985, he suffered a sudden onset of back pain while lifting a load, and was diagnosed with severe spondylarthritis L 4/5. On 3 August 1985, he had to undergo a laminectomy. On 16 August 1985, M.B. applied to the Disability Insurance (InvIA) for benefits. The Disability Insurance Commission concluded on 13 March 1986 that M.B. was fully disabled and entitled to a full disability pension as of 1 July 1986. On 18 March 1986, the Cantonal Aliens Police of Nidwalden informed the Disability Insurance Commission that M.B. had departed for Yugoslavia. By decision of 28 April 1987, the Swiss Compensation Office (OASIA) denied the claim for a disability pension, as M.B. was not insured at the time the insured event occurred on 3 July 1986.

Considerations

The Federal Social Insurance Court (EVG) states that at the time the insured event occurred on 1 July 1986, M.B. neither had a domicile in Switzerland nor was he employed here, thereby precluding insured status under Art. 6(1) InvIA in conjunction with Art. 1 InvIA and Art. 1(1)(a) and (b) OASIA. Furthermore, after his return to Yugoslavia, M.B. did not pay any contributions to the Yugoslav old-age and disability insurance despite resuming employment, so insured status was also denied based on Art. 8(b) of the Agreement.

However, the Court finds that the requirement of actual residence in Switzerland may be waived in certain…