Termination of benefits and disability pension in a knee injury case: case closure without substantial improvement, prior earnings based on LSE competence level 1, dismissal of the insured person's appeal

Facts

Parties and instances: The appellant [A.] (represented by attorney Marko Mrljes) opposes the Swiss National Accident Insurance Fund (Suva) as respondent. The lower instance was the Cantonal Court of Lucerne (decision of 29 November 2020, proceeding 5V 20 6). The subject matter of the dispute is accident insurance (pension).

Facts: The insured person, born in 1971, worked as a hilfsarbeiter (unskilled labourer) at [B. GmbH] with a 30% interim employment while unemployed, and was therefore compulsorily insured with Suva against accident consequences. On 26 October 2017 the employer reported a presumed accident while pulling up a flat roof, in which the insured person allegedly injured his left knee. A complex tear of the left posterior horn of the medial meniscus was diagnosed. Suva provided medical treatment and daily allowances.

Administrative proceedings: By decision of 13 November 2018, Suva denied the need for further treatment (in particular surgery) and discontinued daily allowance benefits as of 1 January 2019. The insured person filed an objection. The district physician Dr. med. [C.] (specialist in orthopaedic surgery and traumatology, report of 14 March 2019) examined him. By decision of 13 May 2019, Suva denied entitlement to a disability pension and integrity compensation; the decision on objection of 19 November 2019 upheld this.

Cantonal proceedings: The Cantonal Court of Lucerne dismissed the appeal. It relied on the district physician's assessment: a substantial improvement could no longer be achieved through further treatment, and the insured person could be expected to perform full-time light to heavy work (no regularly heaviest work, no kneeling activity). The prior earnings were assessed at CHF 69'467.- (LSE, table TA1, construction sector, competence level 1), and the post-injury earnings at CHF 67'999.- (total value TA1, competence level 1), resulting in a degree of disability of 2%, which excluded a pension. There was no integrity impairment above the threshold of materiality.

Requests before the Federal Supreme Court: The appellant requests remittal to the lower instance for a court-ordered expert assessment, alternatively to Suva, or alternatively the award of a disability pension at a degree of disability of 18%; he also requests free legal aid. Suva requests dismissal; the cantonal court and the Federal Office of Public Health waived comment.

Issue in dispute: Whether the cantonal court was correct under federal law in upholding the discontinuation of benefits as of 1 January 2019 (case closure), and the assessment of disability (prior earnings and post-injury earnings).

Considerations

1. Scope of review The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA) and is not bound by the parties' arguments, but in principle only examines the complaints raised, unless the defects are obvious (Art. 42 paras. 1 and 2 FSCA). In proceedings concerning cash benefits of accident insurance, it is not bound by the lower instance's findings of fact (Art. 97 para. 2, Art. 105 para. 3 FSCA).

2. Legal basis for case closure The accident insurer closes the case (discontinuation of medical treatment and daily allowances, examination of disability pension and integrity compensation) when no substantial improvement of the state of health can be expected from further medical treatment and the IV's integration measures have been completed (Art. 19 para. 1 AIA; BGE 134 V 109 E. 4). Decisive is the expected increase or restoration of the work capacity impaired by the accident. Neither a remote possibility of a positive result nor a minor therapeutic progress is sufficient. The prognosis is to be assessed prospectively based on the state of health and not retrospectively (Art. 16 para. 1, Art. 18 para. 1 AIA; Art. 10 para. 1 AIA).

3. Premature closure of treatment and investigation principle The decisive question was whether, at the end of December 2018, a promising treatment of the left knee pain still came into consideration that would be expected to increase work capacity. The Federal Supreme Court confirms the lower instance: the cantonal court relied not only on the district physician, but also on the report of Dr. med. [F.] of 9 August 2019 (private expert of the insured person), which did not show any substantial improvement and attested full work capacity in an adapted activity. The operating surgeon Dr. med. [F.] (Clinic [G.] ) stated on 21 December 2018 that further measures would bring no improvement. The report of Dr. med. [D.] of 10 September 2019 therefore did not raise even slight doubts about the district physician's assessment. The complaint of violation of the investigation principle and the request for a court expert opinion fail.

4. Prior earnings The insured person complained about the application of LSE competence level 1 instead of level 2 (difference of CHF 8'418.- compared with the average earnings from 2014 to 2016). The Federal Supreme Court holds that at the time of the accident there was only a 30%…