Facts

Parties and Procedural History:
The appellant (born 1964) registered with the Disability Insurance (IV office Nidwalden) in August 2018 due to shoulder problems. Based on a multidisciplinary administrative expert report by the Medical Assessment Centre (MEDAS) dated 25 September 2020, the IV office Nidwalden granted the appellant a quarter pension (degree of disability 40%) effective from June 2020 (decision dated 23 July 2021).

The appellant filed an appeal against this decision with the Administrative Court of Nidwalden, which dismissed the appeal in its decision dated 31 January 2022.

The appellant then filed an appeal in public law matters with the Federal Supreme Court. The appellant requested:

  • Annulment of the contested decision and award of at least a half disability pension retroactively from the earliest possible pension start date;
  • Refund of additional costs for private medical assessments (at least CHF 4,200).

Relevant Submissions: The appellant submitted a radiological report dated 18 November 2022 on 24 November 2022, which was deemed untimely and thus inadmissible (Art. 100 para. 1 FSCA).

Considerations

1. Admissibility of Appeal and New Evidence
The appellant submitted a new radiological report after the appeal deadline had expired. This was deemed untimely and thus inadmissible, as it could not be classified as either genuine new evidence (new facts after the decision) or as supplementary evidence (facts that should have been asserted in the cantonal proceedings). The lower court had no sufficient cause to admit the new evidence. Even if it were a case for revision based on new evidence, the revision would have had to be filed with the lower court (cf. BGE 143 V 19 para. 1.2; BGE 138 II 386 para. 7).

2. Intertemporal Law
The contested decision was issued before 1 January 2022, the entry into force of the revised Disability Insurance (RevIV). Therefore, the provisions of the InvIA, the InvIO and the GSSLA in the version valid until 31 December 2021 apply (BGE 148 V 174 para. 4.1).

3. Assessment of Evidence and Medical Decision-Making Bases
The appellant contested the conclusions of the MEDAS report and alleged that the lower court had violated federal law. The Federal Supreme Court reviews the factual findings of the lower court only upon qualified objection or ex officio if they are obviously incorrect or based on a violation of the law (Art. 106 para. 2, Art. 97 para. 1, Art. 105 para. 2 FSCA).

An external administrative expert report is generally considered conclusive evidence unless there are specific indications against its reliability (BGE 125 V 351 para. 3b/bb). The differing assessments of treating physicians alone are not sufficient to call the reliability of the report into question (consistent case law, most recently Judgment 8C_68/2023 of 10 August 2023 para. 5.1.5).

The MEDAS report diagnosed chronic periarthropathic shoulder complaints with muscular imbalance, neurasthenia (ICD-10 F48.0) and persistent somatoform pain disorder (ICD-10 F45.4). The interdisciplinary overall assessment resulted in a 40% incapacity for work. The lower court did not find any obviously incorrect findings and neither violated federal law nor the principle of investigation (Art. 61 lit. c GSSLA).

The appellant was unable to demonstrate any specific gaps in the assessment or arbitrariness. The differing diagnoses (e.g. frozen shoulder vs. periarthropathy) had no significant impact on the assessment of incapacity for work. The difference of 10 percentage points in the assessment of incapacity for work was within the scope of discretion of the experts (BGE 137 V 210 para. 3.4.2.3).

4. Assessment of Disability Income
The appellant contested the determination of disability income. The Federal Supreme Court confirmed that the lower court was entitled to determine the disability income based on the salary from the appellant’s previous occupation as a vocational training specialist, as this occupation was optimally adapted to the disability. The current occupation as a Spitex employee was not ergonomically optimally adapted, which is why the salary earned could not be used as disability income (Art. 28a para. 1 InvIA, Art. 16 GSSLA).

A deduction for suffering (so-called suffering deduction) is generally possible if the disability income is determined based on a statistical table wage. In the present case, however, the disability income was determined based on the…