Facts
The appellant (insured person), born in 1956 and represented by a lawyer, worked as a self-employed real estate broker. After a fall on a dance floor on 27 June 2009 resulting in a humerus fracture and partial rupture of the left rotator cuff, she registered with disability insurance (IV) on 21 April 2010 and stated that she had to reorient her career (training as a mediator). The respondent, the IV office of the Canton of Zurich, obtained the files of the accident insurer, including the report of the Medical Centre Römerhof (MZR) dated 12 June 2012 together with the statement dated 29 August 2012.
By decision of 19 July 2013, the IV office denied entitlement to a pension. It initially refused occupational measures but later, on reconsideration, granted cost coverage for the retraining as a mediator, which had already been completed on 31 March 2012. The Social Insurance Court of the Canton of Zurich (cantonal court), by judgment of 15 August 2015, set aside the decision denying the pension and remanded the matter to the IV office for further investigation in the employment sphere and for an activity and/or income comparison. The Federal Supreme Court did not enter into the appeal lodged against this (judgment 8C_701/2015 of 27 October 2015).
After further investigations, in particular obtaining the expert opinion of the University Hospital [C.] dated 9 March 2016 and a bidisciplinary assessment by Dr. med. [D.] (neurology) and Dr. med. [E.] (psychiatry) dated 18 December 2016, the IV office, by decision of 3 August 2017, granted a temporary full pension for the period from 1 October 2010 to 31 December 2015.
Partially upholding the appeal, the cantonal court, by judgment of 23 January 2019, set aside the decision and granted the insured person an unlimited half pension from 1 July 2015; for the period before that date it denied entitlement to a pension. In addition, a reduced procedural indemnity of CHF 1,800.- was awarded.
By appeal in public law matters, the insured person requests that the judgment of the lower court be set aside, that the decision be set aside insofar as it denies entitlement to a pension from 1 January 2016, that the IV office be ordered to pay a full pension from 1 October 2010, and that an unreduced party indemnity be awarded. The IV office requests dismissal of the appeal. The collective foundation [B.] and the Federal Social Insurance Office waived the filing of responses.
The question at issue is whether the lower court violated federal law by denying entitlement to a pension before 1 July 2015 and recognising only a half pension from that date onwards.
Considerations
The Federal Supreme Court reviews only the legal defects that have been raised and takes the facts established by the lower court as its basis, unless they are manifestly incorrect or based on a violation of law (Art. 105 para. 1 and 2 FSCA, Art. 97 para. 1 FSCA). The relevant legal bases concern the concept of incapacity for gainful activity and disability (Art. 7 and 8 GSSLA), the entitlement to a pension (Art. 28 InvIA), the assessment of the degree of disability by income comparison (Art. 28a InvIA, Art. 16 GSSLA), and the analogous application of the revision provisions (Art. 17 GSSLA, Art. 88a InvIO) in the case of retroactively graded or temporary pensions.
Based on the reports of the MZR, the University Hospital [C.] and the bidisciplinary expert opinion, the cantonal court assumed a 100% work capacity in an adapted activity until the end of June 2015 and 80% thereafter, accepting a material deterioration from July 2015. The appellant complained that this assumption was contrary to the file and manifestly incorrect, that the MZR report was unconvincing, and that the assessment of evidence violated the principle of free and comprehensive evaluation of evidence.
The Federal Supreme Court notes that the cantonal court had already qualified the MZR report as convincing in its judgment of 15 August 2015 and had maintained this view. The expert opinions, which were permissibly regarded as probative, show that the state of health and the effects of the impairment to the left upper extremity did not change after the fall, with the exception of the initial phase with 100% incapacity for work. The newly diagnosed incipient Dupuytren's contracture has no effect on work capacity. The 20% restriction certified by the University Hospital rests only on qualitative, not temporal, limitations, so that a 100% work capacity in an adapted activity should have been concluded. Even taking into account the dissociative movement disorder under BGE 141 V 281, only qualitative restrictions arise; writing can be managed with dictation software, and a two- to three-month adjustment period with 20% reduced performance is not comprehensible given the many years of office work and the mediation training completed in 2012. The assumption of a deterioration from July 2015 and the half pension based on it are therefore untenable. A deterioration of the state of health has manifestly not occurred, so the Federal Supreme Court may correct the findings of fact in this respect.
As to the hypothetical income without disability, the lower court rightly based it on the average of the self-employed activity in the five years before the accident (2004 to 2008) (CHF 114,841.-). The provisions paid late for the years 2011 and 2012 are not to be taken into account, since the same would apply to transactions before 2004. Regarding the duty to mitigate damage, the Federal Supreme Court notes that switching to employment as an employee is reasonable despite an age of around 56 or just over 60 years and very good education; the balanced labour market…