Facts

Parties and procedural history:

The complainant ([A.] , born 1966) had been employed as an assistant butcher by [B. AG] since 1998 and suffered a workplace accident on 6 September 2005, injuring his right hand. The industry insurance (now: industry insurance) covered the medical treatment and paid a daily allowance. With a decision dated 17 July 2006 and confirmed by a ruling on appeal dated 1 December 2006, it closed the case after awarding an indemnity for loss of integrity of 5%. The insurance court of the Canton of St. Gallen set aside the ruling on appeal and referred the matter back for further medical clarification (decision dated 18 September 2007). The Federal Supreme Court did not enter into the appeal against this decision (judgment 8C_643/2007 of 3 July 2008).

On 21 November 2006, the complainant first applied to the disability insurance (IV office of the Canton of St. Gallen) for benefits, as he had been suffering from pain in his fingers, arm and shoulder on the right side since the accident. Based on a multidisciplinary expert report dated 29 April 2008, the IV office denied any entitlement to a pension with a degree of disability of 0%. The insurance court dismissed the appeal against this decision on 3 February 2011. On 14 June 2012, the complainant again applied for benefits. Based on a multidisciplinary expert report dated 30 October 2013, the IV office again denied any entitlement to a pension (degree of disability 0%). The insurance court dismissed the appeal (decision dated 24 August 2017).

On 17 January 2019, the complainant submitted a further new application for benefits due to psychological complaints he had been claiming since the accident, to which the IV office did not accede (decision dated 13 June 2019). The insurance court set aside the decision and ordered the IV office to process the new application (decision dated 6 August 2020). After obtaining a multidisciplinary expert report dated 8 November 2021 (ZMB report) and further clarifications, the IV office denied any entitlement to a pension with a degree of disability of 16% (decision dated 30 May 2023).

The complainant’s appeal against this decision was dismissed by the insurance court, which determined a degree of disability of ‘a maximum of 30%’ (decision dated 28 March 2024). With an appeal in public law matters, the complainant requests that the matter be referred back to the lower court or to the respondent for the purpose of obtaining a legally sufficient multidisciplinary expert report, with the appeal being set aside. In the alternative, he requests that, with the appeal being set aside, he be awarded a disability pension on the basis of a degree of disability of at least 40%.”

Considerations

Legal review and review standard:

The Federal Supreme Court reviews the appeal in public law matters pursuant to Art. 95 et seq. FSCA for violations of law. It applies the law ex officio (Art. 106 para. 1 FSCA) and bases its judgment on the facts as established by the lower court (Art. 105 para. 1 FSCA), provided that these facts were not obviously incorrect or established in violation of federal law (Art. 105 para. 2 FSCA). The appeal must substantively substantiate the objections raised (Art. 42 para. 1 and 2 FSCA). Objections relating to the facts are subject to the qualified objection principle and must demonstrate obvious incorrectness or arbitrariness (Art. 106 para. 2 FSCA).

Intertemporal law and examination of entitlement:

On 1 January 2022, revised provisions in the InvIA and GSSLA entered into force (further development of the IV [WEIV]). In the case of a permanent situation that partly arose before and partly after the new legislation came into force, the entitlement to a disability pension must be examined for the first period under the previous law and for the second period under the new provisions. Special transitional provisions remain reserved (BGE 150 V 323 para. 4.2).

Revision of pension entitlement and assessment of evidence:

A ground for revision exists if the actual circumstances have changed significantly since the pension was awarded and are suitable for influencing the degree of disability and thus the entitlement to a pension. This includes an improvement in earning capacity due to acclimatisation or adaptation to the disability. The disability pension is not only subject to revision in the event of a significant change in health, but also if the earning capacity effects of the health condition, which has otherwise remained the same, have changed significantly (BGE 130 V 343 para. 3.5; judgment 9C_297/2016 of 7 April 2017 para. 2.1).

Expert reports obtained from external specialists in the course of the administrative proceedings must be accorded full probative value in the assessment of evidence, provided that there are no specific indications casting doubt on the reliability of the expertise (BGE 125 V 351 para. 3b/bb). Insurance-internal medical clarifications (e.g. RAD reports) cannot be considered as having probative value without obtaining an external expert report if there are doubts as to their reliability and coherence (BGE 139 V 225 para. 5.2; 135 V 465 para. 4.4).

Assessment of the ZMB report and the lower court:

The lower court accorded full probative value to the ‘in all respects convincing’ ZMB report and concluded from it that the complainant could reasonably be expected to perform a job adapted to his condition ‘at least 70% of the time’ during the relevant period. The complainant objects that the cantonal court exceeded its jurisdiction in determining earning capacity by deviating from the ZMB report. Despite the ZMB experts’ express denial of an addition of the increased need for breaks and the 20% reduction in output as stated in the ZMB report, the cantonal court…