Disability insurance: Determination of the valid income using the LSE table wage and waiver of a disability deduction; entitlement to a quarter pension

Facts

The insured person, born in 1965, received a full disability pension from 1 March 2005, a three-quarter pension from 1 June 2006 and a quarter pension from 1 September 2006 under disability insurance. The DI office of the Canton of Zurich revoked the pension by decision of 27 August 2012 with retroactive effect from 1 January 2010 (degree of disability 13%). The Social Insurance Court of the Canton of Zurich confirmed this on 16 November 2012; the Federal Supreme Court did not enter into the appeal filed against it by judgment 9C_19/2013 of 14 January 2013.

In August 2013 the insured person registered again; the DI office denied a benefit entitlement by decision of 16 June 2014. In May 2015 a further new registration took place. Based on the report of the Zentrum für Medizinische Begutachtung (ZMB) of 13 September 2016 and after the preliminary decision procedure, the DI office determined a degree of disability of 34% and again denied a pension entitlement by decision of 11 April 2017.

The Social Insurance Court of the Canton of Zurich dismissed the appeal by decision of 7 December 2018. The insured person filed an appeal in public law matters with the Federal Supreme Court and requested at least a half disability pension from May 2016. The DI office requested dismissal; the Federal Social Insurance Office waived a response.

Subject matter of the dispute: Solely the amount of the two comparison incomes (valid income linked to the former chauffeur wage; disability income with a deduction of at least 15% from the table wage).

The lower court relied on the ZMB report and found a deterioration of the state of health compared with the state on 27 August 2012. The former activity as a chauffeur was no longer reasonable; in an adapted activity (physically light, not stressing the back) there had been full-time work capacity with 30% reduced performance since 2013. The comparison incomes for 2015 were confirmed at CHF 70'906.- (valid income) and CHF 46'657.- (disability income) according to LSE table wages.

Considerations

Review by the Federal Supreme Court is limited to complained-of violations of law (Art. 95 et seq. FSCA), whereby the law is applied ex officio (Art. 106 para. 1 FSCA). The factual findings of the lower court are in principle binding (Art. 105 para. 1 FSCA), but may be corrected in case of obvious inaccuracy or violation of law, provided this may be decisive for the outcome (Art. 97 para. 1, Art. 105 para. 2 FSCA).

For the assessment of disability, the two hypothetical earned incomes (disability income and valid income) are compared pursuant to Art. 16 GSSLA. The valid income is determined by the earnings which the insured person would, with predominant probability, have achieved as a healthy person at the time of the disability assessment (here the earliest possible start of pension on 1 November 2015, Art. 29 para. 1 and 3 InvIA). As a rule, the most recently earned income is used as the starting point; exceptions must be established with predominant probability. The objective burden of proof for a deviation rests with the DI office where it operates in its favour (Art. 8 CC).

A deduction from the LSE table wage is permissible under certain conditions (personal and occupational characteristics such as type of disability, age, years of service, nationality, degree of employment); it may not exceed 25%. The question of whether table wages are applicable, which table is decisive and whether a disability deduction is to be made constitutes a question of law.

The Federal Supreme Court does not consider the lower court's argument for rejecting the link to the chauffeur wage because of the long time gap to be convincing: for an older employee, it corresponds to general life experience that he continues to perform a position without health impairment over years. Whether a deviation from the rule is warranted here because the insured person became unable to work about six months after taking up the position is left open by the court, as the question is not decisive for the outcome. The appellant demanded a valid income of CHF 89'274.- or roughly CHF 89'500.-; the lower court and the DI office relied on the LSE 2014, table T 17, occupational group 83 (driving and operating mobile machinery), total value for men and the customary weekly working time of 41.7 hours.

The Federal Supreme Court corrects the calculation ex officio: table T 17 is also broken down by age, and the working time table by economic sector. For men aged at least 50 in occupational group 83, the mean income in 2014 was CHF 6'057.-; in the economic sector transport and storage (Nos. 49-53) the customary weekly working time was 42.4 hours. This results in a valid income for 2015 of CHF 77'276.-.

Regarding the…