Facts

The appellant [A.] (born 1992) had been employed on an hourly wage basis as a security officer by [B. GmbH] since 1 November 2018. On 9 November 2020, in an affective state while attempting to stab a cushion with a utility knife, he suffered a severe cut to the left arm near the artery, with lesions to the median nerve, radial artery, ulnar nerve and tendons, which required surgical treatment.

The respondent GENERALI Allgemeine Versicherungen AG (Generali) classified the incident as a non-occupational accident by decision of 17 December 2020 and denied liability, as the appellant had worked significantly less than eight hours per week for [B.] . The objection decision of 18 February 2021 confirmed this. The Social Insurance Court of the Canton of Zurich dismissed the appeal by judgment of 15 June 2021.

Subject matter of the dispute: Accident insurance; whether the appellant, as a part-time employee, reached the minimum working time of eight hours per week under Art. 13 para. 1 AIO and was therefore insured against non-occupational accidents.

Submissions before the Federal Supreme Court: The appellant requested a finding of insurance coverage and liability, alternatively remittal. He complained, inter alia, of a violation of the right to be heard (Art. 29 para. 2 Cst.), as he had not been granted a deadline to comment on the response to the appeal, and of default of acceptance by the employer, on the basis of which the average from January 2019 to March 2020 should be used. New evidence (medical certificate of 4 May 2021, subsequent wage payment of CHF 5,358.75 gross for April to November 2020) was submitted.

Hours overview: In the month before the accident (from August 2020), the appellant worked only in September 2020, for 6.25 hours. Over the twelve months from November 2019, the hours were 28 h (December 2019), 10.25 h (January 2020), 8.5 h (February 2020), 3 h (March 2020), 8.25 h (April 2020) and 6.25 h (September 2020), with no work in the other months.

Considerations

The Federal Supreme Court examines questions of law ex officio (Art. 106 para. 1 FSCA). For insurance coverage in cases of accidents, the exception of Art. 105 para. 3 FSCA does not apply, so factual findings are reviewed only for arbitrariness (Art. 97 para. 1, Art. 105 paras. 1-2 FSCA) and the qualified duty to specify complaints applies (Art. 106 para. 2 FSCA). New facts and evidence are admissible only as unechte Noven (genuine novelties arising from the prior decision) where the prior decision gave cause for them (Art. 99 para. 1 FSCA); echte Noven (true novelties) are disregarded. The medical certificate of 4 May 2021 is an unechtes Novum that could already have been submitted in the cantonal proceedings. The subsequent wage payment and the documents from July and August 2021 are echte Noven.

Under Art. 7 paras. 1 and 2 AIA in conjunction with Art. 13 para. 1 AIO, only part-time employees with at least eight hours of weekly working time with one employer are insured against non-occupational accidents. Recommendation No. 7/87 of the Ad-hoc Commission on Accident Damage under the AIA, which does not bind the court, is to be regarded as lawful. It calculates the average weekly working time over three or twelve months before the accident, whereby only full working weeks with actual assignments count where these predominate, and hours of absence may only be added to a limited extent.

The lower court correctly found that the appellant has significantly more weeks without the minimum number of hours than weeks with at least eight hours. Even taking into account additional hours in November 2019 and March 2020, the result does not change. Refusing a deadline to comment does not violate the right to be heard, since the appellant was represented by counsel and service for information purposes is permissible for legally trained persons according to case law (BGE 138 I 484).

The objection of default of acceptance by the employer does not succeed. In the case of genuine work on call, default of acceptance may exist,…