Accident insurance: lapse of benefit obligation after temporary aggravation and pension revision with unchanged shoulder complaint

Facts

The appellant (born 1953), a self-employed site-supervising fitter, was insured with the Suva through his business against occupational and non-occupational accidents and occupational diseases.

On 11 November 2013 he slipped on a snow-covered road and suffered an injury to the left shoulder (subscapularis lesion, cartilage damage). On 2 May 2014 an arthroscopy was performed. On 25 March 2015 the district physician Dr. med. [E.] certified full-time capacity for light work with restrictions for the left arm. The appellant subsequently gave up his business. By decision of 13 January 2016, the Suva granted an invalidity pension from 1 January 2016 for a loss of earning capacity of 33% and an integrity compensation for an integrity impairment of 25%.

On 15 April 2016 the appellant, now insured with the Suva through unemployment insurance, fell on a staircase. This resulted in a sprain of the lumbar spine with exacerbation of a pre-existing lumbospondylogenic pain syndrome, as well as increased bilateral shoulder complaints. The district physician Dr. med. [H.] assessed the fall as merely a temporary aggravation. By decision of 4 July 2017, the Suva discontinued benefits as of 17 July 2016. The request for a revision-based increase of benefits from the 2013 accident was rejected by the Suva in its decision of 10 July 2017. It dismissed the objections by decision of 2 January 2018.

The Social Insurance Court of the Canton of Zurich dismissed the appeal by judgment of 4 June 2019. The appellant applied before the Federal Supreme Court for remittal for further medical clarification. No exchange of written submissions was ordered.

The disputed issues are (1) proof of the restoration of the status quo sine with respect to the back and shoulder complaints as of 17 July 2016, and (2) the requirements for a pension revision concerning the left shoulder, in particular work capacity and economic effects (DAP substitute activities, deduction from the table wage, coordination with the invalidity insurance).

Considerations

The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA) and, in cash benefit matters of accident insurance, is not bound by the factual findings of the lower court (Art. 97 para. 2 and Art. 105 para. 3 FSCA). The accident insurer's benefit obligation presupposes a natural causal connection (Art. 6 para. 1 AIA). Where the accident is only partially causal, liability for an aggravation requires examining whether the status quo ante or the status quo sine has been restored. The accident insurer bears the burden of proof for this. The structured evidentiary procedure under BGE 141 V 281 does not serve to prove causation and is unnecessary where causation is lacking.

For post-traumatic lumbago and lumboischialgia, according to the current state of medical knowledge, the status quo sine may be expected to be reached after three to four months. A directionally relevant aggravation would have to be demonstrated radiologically. The report of Dr. med. [G.] of 12 May 2016 contains no indication of such an aggravation of the degenerative disc protrusion. The discontinuation of benefits three months after the accident and the omission of neuropsychological examinations are therefore not objectionable.

With regard to the right shoulder, the district physician, following CT arthrography, confirmed that traumatically caused structural lesions were not established. The appellant submitted no medical statements that would give rise to even slight doubts. There is no violation of the investigation principle.

For the left shoulder, active mobility showed a pain-related deterioration, whereas passive mobility showed no change. The family doctor's report of 24 June 2016 does not explain why even light activities would be unreasonable. A revision in the sense of a material change in the actual circumstances (Art. 17 para. 1 GSSLA, BGE 134 V 131) therefore does not exist, and the omission of a comprehensive re-examination is not objectionable (BGE 141 V 9 consid. 2.3).

The discontinuation of the DAP figures by the Suva does not alter the…