Facts

Parties and proceedings: AXA Versicherungen AG (appellant, accident insurer) appealed to the Federal Supreme Court against the judgment of the Social Insurance Court of the Canton of Zurich of 21 May 2021 (UV.2020.00077). The respondent is the insured person A., born in 1969, who worked as a senior manager at B. AG. The subject matter is accident insurance (daily allowance).

Accident and benefits: The insured person was insured against accidents with AXA from 1 July 1999 to 30 June 2014; thanks to an agreed continuation cover (180 days), coverage still applied on 27 August 2014, the day of his motorcycle accident. AXA provided benefits for a soft tissue injury to the right upper ankle joint and accepted liability for the consequences of an ischaemic infarction (pure alexia, severe verbal memory disorder, disturbances of visual perception and visuoconstruction).

Occupational history: From April 2015 to the end of July 2017, disability insurance reintegration measures were in progress. In August 2017 the insured person registered with the unemployment insurance. From 1 April to 30 September 2018 he worked at 50% as a Wealth Planning Life Insurance Specialist at C. AG (fixed-term). From 1 November 2018 he took up a permanent position at 70% as Assistant Vice President at B. AG.

Administrative proceedings: Based on the asim assessment report of 29 January 2019, AXA, by decision of 4 March 2019, discontinued the medical treatment costs as of 31 January 2019, granted a daily allowance for 1 August 2017 to 31 January 2019 based on 50% incapacity for work, and from 1 February 2019 granted a pension (degree of disability 43%) and a compensation for integrity loss (30%). The objection decision of 11 March 2020 confirmed this. The IV office granted a full disability pension until 31 March 2018 and thereafter a quarter pension; the cantonal court extended the entitlement to a full pension until the end of October 2018.

Cantonal judgment: The Social Insurance Court partly amended the objection decision and found an entitlement to a daily allowance for 1 April 2018 to 31 January 2019 based on 100% incapacity for work; otherwise it dismissed the appeal.

Requests before the Federal Supreme Court: AXA requested the annulment of the daily allowance entitlement based on 100% for 1 April 2018 to 31 January 2019 and, in the alternative, remittal. The insured person requested dismissal of the appeal.

Formal matters - timeliness: The prior-instance judgment was served on 7 June 2021; the 30-day time limit expired on 7 July 2021. According to AXA, the first submission was posted in a letterbox on 7 July 2021 between 22:30 and 22:40, but was only registered in the Track-&-Trace system on 8 July 2021. The second consignment bore the postmark of 8 July 2021; the envelope noted the time (23:40) and two witnesses. A witness confirmed in writing the posting at the stated time. The Federal Supreme Court held the presumption of late posting to be rebutted and entered into the appeal; as regards the first consignment, there was no indication of witnesses.

Unechte Noven: A report by Dr. med. D. of 13 June 2018 was submitted for the first time before the Federal Supreme Court and, as an inadmissible genuine novum, was not considered.

Considerations

Admissibility and type of appeal: The contested decision is a final decision (Art. 90 FSCA), as the prior instance conclusively determined the daily allowance entitlement for 1 April 2018 to 31 January 2019. The statement on the overinsurance calculation does not constitute a remittal decision within the meaning of Art. 93 FSCA. The time limit for appeal (Art. 100 para. 1 FSCA) was observed in view of the burden of proof for timeliness (Art. 8 CC; postmark presumption), since the posting of the second consignment was substantiated by credible witness statements.

Scope of review and novas: The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA) and, in matters of monetary benefits under accident insurance, is not bound by the prior instance's findings of fact (Art. 97 para. 2, Art. 105 para. 3 FSCA). The report of 13 June 2018, submitted for the first time, is a genuine novum that is inadmissible under Art. 99 para. 1 FSCA, as it could already have been raised in the cantonal proceedings.

Legal framework: An entitlement to a daily allowance exists in the case of full or partial incapacity for work caused by the accident (Art. 16 para. 1 AIA). Incapacity for work is to be assessed under Art. 6 GSSLA, whereby, in the case of long duration, the activity reasonably required in another occupation must also be taken into account. If an insured person must change occupation for reasons of damage mitigation, a transitional period of generally three to five months is to be granted, during which the previous daily allowance remains payable. Thereafter, the incapacity for work corresponds to the income difference between earnings in the former and the new occupation. This also applies to insured persons who are unemployed.

Requirements for the substitute activity: Utilising the residual work capacity in another field of activity presupposes a presumably lasting impairment in the former occupation and a stable state of health; an unstable condition of limited duration is not sufficient.

No special request required: As the insured person had already given up his position before the accident and AXA had expressly requested him on 7 August 2017 to register with the AOO (AOO), no special request and no further adjustment period for the change of occupation were required.

Stable state of health: The asim assessment report found that the former managerial activity was no longer reasonably required; in a substitute activity, at 70% presence, there was a…