Facts
The IV office of the Canton of Zurich granted the respondent a half disability pension after court experts made the predicted full capacity to work contingent on the implementation of certain therapeutic measures. The respondent had previously applied for a disability pension, with the IV office assessing incapacity to work taking into account therapy potential. The lower court based its decision on the assumption that capacity to work could not be restored despite reasonable reintegration measures. The IV office of the Canton of Zurich appealed this decision to the Federal Supreme Court.
The Federal Supreme Court had to determine whether the lower court’s award of a disability pension despite existing therapy potential was compatible with the coordination principle Reintegration before pension (Art. 1a InvIA). It also had to examine the extent to which the treatability of a health impairment affects the pension entitlement and what role the insured person’s obligation to self-reintegrate plays.
Considerations
The Federal Supreme Court first confirmed that the coordination principle Reintegration before pension is not affected by the award of a disability pension. According to Art. 28 para. 1 lit. a InvIA, entitlement to a disability pension requires that capacity to work cannot be restored, maintained or improved through reasonable reintegration measures. Only when such measures are no longer feasible can a pension entitlement arise. This also applies following the entry into force of Art. 28 para. 1bis InvIA (1 January 2022), which further specifies the priority order for statutory benefits. Case law emphasises that a pension entitlement can only arise after the completion of reintegration measures, provided the insured person is fundamentally capable of reintegration.
The treatability of a health impairment does not per se affect pension entitlement. The previous practice, under which treatability was considered a question of the severity of the illness (e.g. in cases of addiction or obesity), has been abandoned. Today, treatability is regarded as a factor in determining functional limitations and the severity of the health impairment. Incapacity to work may exist even where treatability is fundamentally possible, particularly if the insured person is unable to implement the therapy on their own initiative. Case law has adapted this approach in particular for mental illnesses (e.g. mild to moderate depression) and obesity, as these are no longer automatically considered readily treatable.
However, treatability plays a role in the assessment of disability. A successful treatment outcome may be anticipated and directly taken into account under the heading of the obligation to self-reintegrate (Art. 7 para. 2 lit. d InvIA) if the success depends on the insured person’s behaviour and they could realise their capacity to work without further professional assistance. This applies, for example, where therapeutic measures such as taking prescribed medication can be implemented independently. In such cases, self-reintegration takes precedence over pension entitlement. If, however, there is no self-reintegration obligation that can be implemented independently, a pension entitlement may arise even in cases of an untreated condition, provided the treatment potential requires clarification. In such cases, the insured person is obliged to cooperate in clarifying and implementing the therapy (Art. 7 para. 2 lit. d InvIA).
The Federal Supreme Court clarified that a disability pension…