Facts

Parties: The insured person (appellant) had been employed as a care assistant since May 2017 and was insured under a collective agreement against loss of earnings due to illness with [B. AG] (respondent, represented by attorney Marianne I. Sieger). The employment relationship ended on 31 March 2019; from October 2019 she received unemployment benefits.

Subject matter: Daily sickness benefit insurance.

Facts:

  • From 29 April 2018 an incapacity for work due to illness was certified (initially complete, then 80%, 75% and from 1 August 2020 60%).
  • From 29 May 2018 the respondent paid daily benefits for foot complaints. Following an assessment by Dr. med. [C.] (full capacity for work in adapted activities), it announced the termination of benefits as of 31 March 2019; upon objection it granted a transition period until 30 June 2019.
  • By letter of 13 June 2019 the insured person claimed that she additionally suffered from retractile capsulitis of the right shoulder, which had already caused incapacity for work before March 2019. On 21 July 2019 she revoked the release from medical confidentiality. By letter of 23 July 2019 the respondent paid daily benefits until the end of July 2019 (foot complaints), requested a polydisciplinary assessment and pointed out the exclusion of benefits in the event of refusal.

Lower court: By partial action of 16 March 2020 before the Social Insurance Court of the Canton of Zurich (5th Chamber), the insured person sought daily benefits from 1 August 2019 until the maximum duration of benefits, plus interest. By judgment of 21 June 2021 the Social Insurance Court dismissed the action and ordered the insured person to pay procedural compensation of CHF 3,800.--. A request for revision was dismissed as manifestly unfounded by judgment of 19 November 2021.

Proceedings before the Federal Supreme Court: The insured person lodged an appeal in civil matters seeking approval of the action or remittal and a new determination of party compensation. At her request, the proceedings were stayed until the Federal Supreme Court disposed of the appeal against the revision judgment (4A_637/2021) by declaring it inadmissible (judgment of 20 January 2022). No responses were obtained.

Disputed question: Whether the respondent owes daily benefits beyond 31 July 2019, in particular whether the insured person proved an incapacity for work caused by the shoulder condition that occurred before the end of the contract (31 March 2019).

Considerations

Formal requirements and principle of complaints (consid. 1-2): The requirements for a decision on the merits are met. The appeal in civil matters under Art. 95 and 96 FSCA must be adequately substantiated (Art. 42 para. 2 FSCA; BGE 134 II 244). The Federal Supreme Court is bound by the facts established by the lower court (Art. 105 para. 1 FSCA); a correction is only possible in case of manifest inaccuracy (arbitrariness) and relevance to the decision (Art. 105 para. 2, Art. 97 para. 1 FSCA). For complaints concerning the facts, the strict principle of complaints under Art. 106 para. 2 FSCA applies.

Requirements for entitlement and the lower court (consid. 3): It was undisputed that insurance coverage expired on 31 March 2019 without transfer to individual insurance, and that the shoulder complaints qualified as a new insured event. The duty to pay benefits presupposed that the shoulder condition led to an uninterrupted incapacity for work of at least 25% before March 2019. The burden of proving incapacity for work in the previous activity rests with the insured person. The evidence submitted was insufficient; moreover, the insured person had frustrated timely medical clarification although she was contractually obliged to allow it.

Impermissible presentation of facts and new evidence (consid. 4): The insured person relied largely on her own account of the facts without adequate complaints regarding the facts (Art. 97, 105, 106 FSCA, Art. 112 lit. b FSCA), so these complaints miss the mark. The complaints of violation of Art. 9, 29 para. 1 and 2, Art. 30 Cst. as well as Art. 41 and 45 IPA were not examined for lack of a legally adequate substantiation. New evidence submitted after the contested decision (e-mails, registered letters, transfer receipt) is inadmissible in appeal proceedings (BGE 143 V 19 consid. 1.2; 140 V 543 consid. 3.2.2.2); it was rightly rejected as unfounded in the revision proceedings. The allegation that the respondent failed to send a reminder is incorrect, as the letter of 23 July 2019 pointed out the duty to cooperate and the exclusion of benefits.

Precedent and binding effect (consid. 5-6): Judgment 4D_7/2021 contains no statement that a medical certificate always suffices; it merely held that the assessment of evidence in that individual case was not manifestly arbitrary. According to BGE 141 III 433, a private expert opinion is merely a party assertion and cannot alone prove a fact that is substantially disputed. The earlier IV judgment of 20 March 2020 concerned integration measures and does not create binding effect on the question of incapacity for work in the daily sickness benefit relationship.

Assessment of evidence and standard of proof (consid. 7): In a more recent judgment (4A_117/2021 of 31 August 2021, consid. 3.3.1), the Federal Supreme Court held that in such insured events the ordinary standard of full conviction, not the reduced standard of predominant…