Non-entry on a late-substantiated objection due to an abusively granted grace period in accident insurance

Facts

Parties and lower instances: The appellant [A.] (born 1979) was compulsorily insured through his employer with Helsana Unfall AG (Helsana) against occupational and non-occupational accidents. On 25 May 2016 he suffered a burst fracture of the 7th thoracic vertebra in a cycling accident. Helsana provided the statutory benefits.

Decision and objection: By decision of 27 March 2020, Helsana discontinued the daily allowance and medical cost benefits and awarded an integrity compensation for an integrity impairment of 10%. The decision was served on his then legal representative on 30 March 2020. On 19 May 2020, the last day of the 30-day objection period under Art. 52 para. 1 GSSLA as extended by the COVID-19 Ordinance (suspension of time limits from 21 March to 19 April 2020), this representative filed as a precaution an unsubstantiated objection without any requests for relief. He requested access to the file from file item 144 onward and an extension of time for the substantiation.

Grace period and change of mandate: On 22 May 2020, Helsana set a deadline until 22 June 2020 for the substantiation, under threat of non-entry. On 29 May 2020 the mandate was transferred to lawyer Meier Rhein. The new legal representative filed a power of attorney dated 5 June 2020 on 20 June 2020 and requested service of a new password as well as an appropriate grace period. Helsana extended the time limit repeatedly, most recently until 31 August 2020. The substantiated objection was filed on 30 August 2020 (posted on 31 August 2020).

Non-entry decision: By decision on objection of 23 October 2020, Helsana declined to enter into the objection.

Lower instance: The Social Insurance Court of the Canton of Zurich dismissed the appeal by judgment of 4 February 2021 (UV.2020.00270). It held that the then legal representative had deliberately filed a deficient objection in order to obtain an impermissible extension of the non-extendable objection period, which was an abuse of rights. Good faith could not be invoked to protect timeliness.

Requests before the Federal Supreme Court: The appellant requested that the judgment of the lower court and the decision on objection be set aside and that Helsana be instructed to enter into the objection. Helsana requested dismissal; the lower court and the Federal Office of Public Health waived a response.

Issue in dispute: The question to be examined was whether the lower court violated federal law by upholding the non-entry decision.

Considerations

Scope of review: The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA), but in principle examines only the complaints raised, unless the defects are obvious (BGE 145 V 57 E. 4.2). Since claims to cash benefits of compulsory accident insurance are at issue, the exception of Art. 105 para. 3 FSCA does not apply; the findings of fact may only be reviewed under Art. 105 paras. 1 and 2 FSCA.

Formal requirements and grace period: Under Art. 52 para. 1 GSSLA, an objection must be filed within 30 days; the statutory time limit cannot be extended (Art. 40 para. 1 GSSLA). Art. 10 paras. 1 and 5 GSSLO requires a request for relief and a statement of reasons; if these are lacking, an appropriate grace period must be set, with a threat of non-entry. This grace period corresponds to Art. 61 let. b GSSLA, whose scope of application also extends to the objection procedure, since stricter formal requirements cannot apply there than in court proceedings (BGE 142 V 152 E. 2.3). The grace period serves to protect parties unfamiliar with the law, but is not to be granted in cases of evident abuse of rights, where a legally knowledgeable person deliberately files a deficient submission in order to obtain a grace period (BGE 142 V 152 E. 4.5; 134 V 162 E. 4.1).

Abuse of rights by the then legal representative: The then legal representative had not been mandated only shortly before the expiry of the time limit, but already had knowledge of the facts and possessed part of the file; he could have requested the missing file documents immediately. According to case law (BGE 134 V 162 E. 5.2), a grace period is permissible only for a person who was mandated shortly before the expiry of the time limit and acted in good faith, and only if the file is obtained without delay. In the present case, the grace period amounted to an impermissible extension of the non-extendable objection period. The lower court did not violate federal law by…