Adjustment of the insured annual earnings in voluntary accident insurance for self-employed persons to the nominal wage development

Facts

Parties and procedural history:

The Swiss National Accident Insurance Fund (Suva) as the appellant in proceedings 8C_457/2023 challenges a judgment of the Cantonal Court of Basel-Landschaft dated 27 April 2023, by which the insured annual earnings for pension assessment were set at CHF 59,751.-. The insured party [A.] , as the appellant in proceedings 8C_469/2023, seeks the reversal of this judgment and the setting of an invalidity pension of at least CHF 2,733.- per month as of 1 April 2020. Both appeals are directed against the same lower-instance decision and were joined by the Federal Supreme Court for joint consideration.

Facts of the case:

[A.] , born in 1964, ran a sole proprietorship for window installation since 1997, which was registered as [B. GmbH] from the end of 2003. He was voluntarily insured with Suva against accident consequences and was compulsorily insured from 1 January 2004. On 26 April 2000, he suffered a work-related accident with a meniscus lesion to the right knee. Suva provided medical treatment and daily allowances and later recognised a 25 % disability compensation for permanent gonarthrosis. With a ruling dated 2 March 2020, Suva granted an invalidity pension as of 1 April 2020, based on a 50 % loss of earnings due to the accident and an insured annual earnings of CHF 48,600.-. Following an appeal, Suva confirmed this ruling on 22 October 2020.

The Cantonal Court of Basel-Landschaft set aside the appeal decision on 1 July 2021 and referred the matter for further clarification. The Federal Supreme Court confirmed this in a previous judgment (8C_701/2021 of 4 May 2022, FSCA 148 V 286). The IV Office of Basel-Landschaft granted [A.] a half invalidity pension as of 1 November 2019. Suva adjusted the insured annual earnings to CHF 58,693.- with a ruling dated 12 July 2022 (confirmed by an appeal decision dated 14 December 2022) and granted a monthly supplementary pension of CHF 1,738.- as of 1 April 2020.

The Cantonal Court of Basel-Landschaft partially amended the appeal decision of 14 December 2022 and set the insured annual earnings at CHF 59,751.-. Both Suva and the insured party filed appeals against this decision with the Federal Supreme Court.

Considerations

Joinder of proceedings and standard of review:

The Federal Supreme Court joined the two appeals due to the same facts and related legal issues (Art. 97 para. 2 and Art. 105 para. 3 FSCA). It examined the appeals ex officio (Art. 106 para. 1 FSCA) and was not bound by the lower-instance findings. The appellants were required to substantiate their objections (Art. 42 paras. 1 and 2 FSCA).

Subject matter and legal bases:

The central issue was whether the insured annual earnings (Art. 15 para. 2 AIA) relevant for pension assessment had been correctly determined. The insured party had voluntarily taken out insurance with Suva in 1997, choosing a coverage option with an insured annual earnings of CHF 48,600.-, which corresponded to the then minimum earnings for self-employed persons. Suva adjusted this amount in application of the changed case law (FSCA 148 V 286) to the nominal wage development in the construction industry, taking gender-specific wage indices into account. The Cantonal Court, by contrast, did not differentiate by gender and determined a higher insured earnings of CHF 59,751.-.

Assessment of the adjustment of the insured earnings:

The Federal Supreme Court confirmed that the voluntary insurance of the appellant also remains liable for the consequences of the relapse (FSCA 148 V 286 para. 6). The adjustment of the agreed pre-accident earnings to the nominal wage development was justified under the particular circumstances of the case. However, the lower court had wrongly refrained from gender-specific differentiation, although case law (FSCA 148 V 286 para. 9.4) requires this. Suva correctly calculated the insured earnings by taking into account gender-specific…