Revocation of a half disability pension following revision due to improved state of health; no entitlement to integration measures before pension revocation

Facts

Parties and subject matter: The appellant (insured person, born 1968) is represented by a lawyer. The respondent is the IV-Stelle Solothurn. The subject matter is disability insurance (disability pension; revision). Contested is the decision of the Versicherungsgericht of the Canton of Solothurn of 25 February 2019 (VSBES.2018.208). The Federal Supreme Court (I. Social Law Division, judgment 8C_229/2019 of 5 July 2019) has to decide whether the lower court was right to confirm the revocation of the half disability pension with effect from 1 May 2017.

Course of proceedings:

• By decision of 15 January 2004, the IV-Stelle denied a benefit entitlement; objection decision of 11 October 2004. The cantonal court upheld the appeal on 1 July 2005 and remitted the matter for further investigation.
• Based on the MEDAS report of 31 August 2006, the IV-Stelle granted a half disability pension from 1 September 2003 (degree of disability 58%) on 28 June 2007.
• The insured person inherited CHF 600,000 and invested this in real estate (one of which he occupied himself), which he managed himself.
• The revision of 8 December 2009 confirmed the half pension based on the MEDAS report of 26 November 2009.
• Following an anonymous tip, the IV-Stelle initiated a further revision in October 2011. The ABI report of 2 May 2016 certified a work capacity of 100% in an adapted activity. By decision of 16 March 2017, the IV-Stelle revoked the pension.
• On 26 September 2017, the cantonal court found an improvement in the state of health but remitted the matter for an income comparison and further investigations (remittal decision, not having acquired res judicata effect).
• By decision of 5 July 2018, the IV-Stelle confirmed the revocation of the pension with effect from 1 May 2017.
• The Versicherungsgericht dismissed the appeal on 25 February 2019.

Requests before the Federal Supreme Court: Main request: continued payment of a half pension. Alternatively, remittal to the lower court; subsidiarily, annulment of the decision of 5 July 2018 and granting of integration measures. The lower court requests dismissal; the IV-Stelle and the FSIO waive submission of observations.

Findings of the lower court: The hypothetical income without disability was correctly implemented. Based on the reports of Clinic B. of 30 March 2017, Hospital C. of 13 November and 2 December 2017, and the specialist physician of 4 December 2017, no continuing change in health (longer than three months) compared with the ABI report was established. The income with disability (CHF 60,444.75; LSE 2014, TA1, competence level 1, nominal wage development, 10% disability-related deduction) yielded a degree of disability of 11% against a hypothetical income of CHF 67,920.50. Even with a maximum deduction of 25%, there would have been no pension entitlement. Integration measures were denied: the insured person was 49 years old, had received a pension for 13 years and 7 months, could invest the inheritance in real estate, light activities require no special qualifications, the ABI experts recommended no measures because of subjective conviction of illness, and the utilisation of residual work capacity did not occur.

Considerations

Scope of review: The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA) and in principle examines only the complaints raised (Art. 42 paras. 1 and 2 FSCA; BGE 141 V 234 consid. 1). Findings of fact may only be corrected where obviously incorrect or in breach of law (Art. 105 para. 2 FSCA); the party must substantiate that remedying the defect would be decisive (Art. 97 para. 1 FSCA). New facts and evidence are only admissible insofar as the lower court's decision gives rise to them (Art. 99 para. 1 FSCA).

Appealability of the remittal decision: The effect of withdrawing suspensive effect upon revocation of a pension continues even after judicial remittal, which is why the revocation of the pension with effect from 1 May 2017 must be examined. The remittal decision of 26 September 2017 is binding on the lower court but has not acquired res judicata effect; objections against it may be raised in the context of appealing the final decision, insofar as they affect it (Art. 93 paras. 1 and 3 FSCA).

Establishment of facts: The appellant is unable to show that the lower court's findings of fact were obviously incorrect or arbitrary (BGE 144 V 50 consid. 4.2 and 4.3). The report of Clinic B. does come from a treating institution, which is taken into account in favour of the insured person in case of doubt (BGE 135 V 465 consid. 4.5). However, an administrative expert opinion is not called into question merely because it reaches different assessments than treating physicians; exceptions apply only if the treating physicians name important aspects that are not purely subjective. This was not apparent. Moreover, the report did not know the ABI report and did not justify the divergent psychiatric diagnoses or the full incapacity for work.

Ground for revision: A ground for revision also exists where diagnoses remain unchanged, if the economic effects of the unchanged health impairment have changed significantly (BGE 130 V 343 consid. 3.5). The ABI report satisfies the…