Non-entry by the IV office due to failure to undergo benzodiazepine withdrawal contrary to federal law; remittal for further investigation and a new decision

Facts

The claimant, born in 1960, worked as a cleaner at a 50% workload until September 2008. In January 2009 she applied for benefits from the disability insurance, citing depression.

The IV office of the Canton of Aargau (IV office) arranged a multidisciplinary assessment (psychiatry, orthopaedics, neurology) by MEDAS Oberaargau AG (expert report of 21 December 2012). Diagnoses included a depressive episode and benzodiazepine dependence, among others. Because of considerable sedation, a reliable assessment of work capacity was not possible.

On 20 March 2013 the IV office required the claimant to undergo an inpatient or day-patient withdrawal with periodic laboratory checks. The claimant requested that the costs be covered under Art. 45 GSSLA. On 27 May 2013 the administration ruled that the withdrawal was not an investigative measure but a precondition for the investigation, and that the costs therefore were not to be borne by the disability insurance. The Insurance Court of the Canton of Aargau upheld this decision in a final judgment of 20 May 2014 and classified the withdrawal as treatment of the impairment.

Inpatient stays at Clinic B. (19 September to 16 October 2013) and at the Psychiatric Clinic C. (10 March to 4 June 2015) did not lead to a complete discontinuation of the benzodiazepines. After a further psychiatric assessment by Dr. med. E. (expert report of 29 December 2016), the IV office on 11 April 2018 declined to enter into the benefits claim, because complete abstinence had not been achieved and the state of health therefore could not be conclusively investigated.

The Insurance Court of the Canton of Aargau dismissed the appeal by decision of 19 March 2019. The claimant filed a public law appeal with the Federal Supreme Court and requested that the decisions be set aside and that a full disability pension be granted, or alternatively that the matter be remitted for a substantive assessment, or in the further alternative that the warning and reflection-period procedure be repeated. She complained in particular that non-entry under Art. 43 para. 3 GSSLA was impermissible, that good faith had been violated, that there was excessive formalism (Art. 6 ECHR), and that the duty to investigate (Art. 27 GSSLA) had been breached, since she had submitted laboratory results of 18 January and 16 March 2018. The IV office requested that the appeal be dismissed; the FSIO waived a response.

Considerations

The Federal Supreme Court reviews the application of federal law freely (Art. 95 let. a FSCA, Art. 106 para. 1 FSCA) and is bound by the facts established by the lower court, unless these are manifestly incorrect (Art. 105 paras. 1 and 2 FSCA). Granting benefits beyond the non-entry decision lies outside the subject matter of the dispute and is not to be examined (BGE 125 V 413).

With BGE 145 V 215 the Federal Supreme Court changed its case law: a primary dependence on psychotropic substances may also constitute a disabling health impairment, the effects of which are to be assessed under the structured evidentiary procedure (BGE 141 V 281). The new case law applies immediately and also to all cases pending at the time of the change.

Under Art. 43 para. 3 GSSLA, in the event of an inexcusable breach of duties to provide information or cooperate, the insurance carrier may decide on the basis of the file or decline to enter into the matter, after a prior written warning and reflection period. Under the new case law, ordering a withdrawal treatment before the assessment under the heading of the duty to cooperate is not permissible in cases of primary dependence, since this would anticipate, in a way irrelevant to disability insurance law, the qualification of the matter. A withdrawal treatment may, however, be ordered at any time as a damage-mitigation measure, insofar as it is reasonable (BGE 145 V 215 E. 8.2). A breach of damage-mitigation duties does not, however, entitle the administration to decline to enter into the matter, but at most to reduce or refuse benefits (Art. 7 paras. 1 and 2 let. d InvIA in conjunction with Art. 21 para. 4 GSSLA). Non-entry based on Art. 43 para. 3 GSSLA therefore violates federal law.

Whether the claimant can be reproached with any breach of duty at all remains open, since a failed treatment outcome alone is not sufficient for that, particularly in view of the withdrawal treatments already carried out and the medical service opinion of 23 May 2017. The relationship between Art. 43 para. 3 GSSLA and Art. 7b para. 1 InvIA is in principle applicable side by side, so there is no need to go into it further.

On the substantive examination of entitlement, the Federal Supreme Court notes that a pension entitlement may arise after the expiry of the one-year waiting period if the person is not, or not yet, capable of rehabilitation (Art. 28 para. 1 let. a and c InvIA). The basic treatability does not per se preclude an entitlement (BGE 143 V 409, BGE 127 V 294).

The medical basis is insufficient: according to the…