Rejection of appeal against rejection of disability pension due to lack of disabling health impairment

Facts

Parties and procedural history:

The appellant, born in 1974, registered with the Disability Insurance (DI office Bern) for benefits in August 2021, citing suspected Post-Covid. The DI office Bern initiated an assessment procedure, in particular by obtaining the files of the Swiss Mobiliar Insurance Company Ltd (Mobiliar), which had commissioned an internal medicine and psychiatry expert report from the Swiss Medical Assessment and Business Center (SMAB) Ltd Bern dated 3 October 2022 and a supplementary statement dated 15 November 2022. Based on these expert reports, the DI office Bern issued a decision on 9 December 2022 rejecting the pension claim due to the absence of a disabling health impairment.

The appellant’s subsequent appeal was dismissed by the Administrative Court of the Canton of Bern in a judgment dated 30 May 2023. During the appeal proceedings, the appellant submitted additional medical reports, including a report from Hospital [B.] dated 24 March 2023. The appellant later also submitted a discharge report from Clinic [D.] dated 30 August 2023 and a report from Dr med. [C.] dated 8 June 2023.

Main point of contention: The appellant argues that the lower courts wrongly denied the existence of a disabling health impairment and thus rejected her claim for a disability pension. She requests that the contested judgment be set aside and the matter referred back to the lower court for reassessment.

Considerations

1. Admissibility of the appeal:

The appellant initially requested only that the contested judgment be set aside and the matter referred back. The Federal Supreme Court examined whether the request should be interpreted as a substantive claim under the principle of good faith. Since the grounds for appeal clearly indicated that the appellant sought a reassessment of her pension claim, the appeal was admitted (cf. Art. 107 para. 2 FSCA; BGE 133 III 489 para. 3.1).

2. Scope of review and intertemporal law:

The Federal Supreme Court examines compliance with federal law ex officio (Art. 106 para. 1 FSCA), but is limited to the legal defects raised (Art. 42 para. 1 f. FSCA). It bases its decision on the facts established by the lower court (Art. 105 para. 1 FSCA), but may correct or supplement them ex officio if they are obviously incorrect or based on a legal violation and could be decisive for the outcome of the proceedings (Art. 97 para. 1, Art. 105 para. 2 FSCA).

The appellant filed her claim in August 2021. Since benefits could only have been paid from February 2022 at the earliest (Art. 29 para. 1 InvIA), the revised law in force since 1 January 2022 (IV reform, IV Reform) applies to the assessment of the claim. The lower court correctly applied the new versions of the InvIA, InvIO and GSSLA.

3. Evidentiary value of the SMAB Ltd expert report:

The appellant challenged the formal and substantive deficiencies of the SMAB Ltd expert report dated 3 October 2022 (with supplement dated 15 November 2022), which the DI office Bern and the cantonal court had used as the basis for their decisions. The Federal Supreme Court confirmed that an expert report commissioned by a private disability insurance company does not inherently have less evidentiary value than a report under Art. 44 GSSLA. However, strict requirements apply to the assessment of evidence. If doubts arise regarding the reliability or coherence of such an expert opinion, additional investigations must be carried out.

The appellant had ample opportunity during the preliminary ruling and appeal proceedings to comment on the expert report. She neither raised specific supplementary questions nor presented personal objections against the experts. There was no entitlement to inspect the test results or audio recordings, as these were not prepared under Art. 44 para. 6 GSSLA. The lower court correctly assessed the expert report and found no formal deficiencies.

4. Substantive objections of the appellant:

The appellant contested the psychiatric sub-expert report by Dr med. [E.] and the non-consideration of fibromyalgia syndrome. The Federal Supreme Court referred to the binding findings of the lower court, which did not reveal any obvious…