Facts
The insured, born in 1961, had been employed as a construction worker by a placement firm since 1 September 2017 and was therefore compulsorily insured against accidents with Suva (Swiss National Accident Insurance Fund). On 10 October 2017 he fell and suffered a third-degree open distal tibial fracture on the left. Several operations on the left leg followed (on 10 October, 27 October and 22 December 2017, and 23 February 2018). Suva provided medical treatment and daily allowances.
By letter of 25 April 2019, Suva discontinued the daily allowances as of 30 June 2019. By decision of 17 June 2019, it denied a pension entitlement for lack of loss of earning capacity and awarded integrity compensation of 30%. By decision on objection of 17 June 2020, it upheld the case closure as of the end of June 2019.
The Cantonal Court of Basel-Landschaft upheld the insured's appeal, set aside the decision on objection and found that the final state had only been reached as of 1 November 2019. It remitted the matter to Suva for determination of benefits and for a new decision (judgment of 6 May 2021).
By way of a public law appeal, Suva requests that the cantonal judgment be set aside and its decision on objection be confirmed. The insured requests dismissal of the appeal and free legal aid. The Federal Social Insurance Office waived a response.
The question in dispute is whether fixing the case closure at 1 November 2019 rather than at the end of June 2019 complies with federal law.
Considerations
The Federal Supreme Court affirms the admissibility of the appeal. A remittal is in principle an interlocutory decision under Art. 93 para. 1 FSCA, but it is treated as an appealable final decision under Art. 90 FSCA where the administration no longer has any room for discretion and the remittal merely serves to implement what the higher instance has ordered (BGE 140 V 282 E. 4.2).
The lawfulness of the case closure is assessed under Art. 19 para. 1 AIA: the decisive question is whether, after continuation of medical treatment, a substantial improvement in the state of health could still be expected. The improvement must be significant; insignificant improvements or the mere possibility of an improvement are not sufficient. The assessment is to be made prospectively, based on medical prognoses. Later retrospective reports are not legally relevant (BGE 134 V 109 E. 4.3).
The report of the district physician Dr. med. [D.] of 25 April 2019 is coherent and probative. She examined the insured clinically, was aware of the prior records including the report of Dr. med. [E.] of 6 February 2019, and gave reasons for her assessment. There are no doubts, even minor ones, about her assessment (BGE 142 V 58 E. 5.1; BGE 134 V 231 E. 5.1).
The lower court wrongly relied on the reports of the hospital [C.] of 21 January and 21 September 2020 and the report of 1 August 2019, as they were issued after the time of case closure and are not legally relevant for the prospective assessment. The opinion of Dr. med. [H.] of 21 December 2018 does not assist the insured, as it merely recommended further investigations.
The report of Dr. med. [D.] does not constitute an impermissible 'second opinion', since the reports of Dr. med. [E.] and the file opinion of Dr. med. [F.] are not expert opinions and did not sufficiently clarify the question of case closure (Art. 43 GSSLA; BGE 141 V 330 E. 5.2). The reference to metal removal and further physiotherapy does not establish a substantial improvement that could be…