Facts

The dispute concerns an insured person, born in 1965, employed as a mason by [B. SA] and insured against accidents with the Swiss National Accident Insurance Fund (SUVA). On 15 January 2014, he suffered a workplace accident that caused injuries to his right leg and left foot. SUVA took the case in charge.

By decision of 28 November 2016, confirmed on objection on 16 January 2017, SUVA granted the insured person a disability pension based on a degree of disability of 11% from 1 October 2016.

The insured person appealed to the Social Insurance Court of the Cantonal Court of Valais, requesting a full pension. By judgment of 20 August 2019, the cantonal court very partially upheld the appeal, annulled SUVA's decisions and granted a pension based on a degree of disability of 15% from 1 October 2016.

SUVA lodged an appeal with the Federal Supreme Court, seeking confirmation of its decision on objection. The respondent seeks dismissal of the appeal. The cantonal court and the Federal Office of Public Health waived the right to submit observations.

Calculation of income without disability:

  • SUVA: hourly wage of CHF 28.45, 2174 annual hours and thirteenth-month salary, i.e. CHF 67,003
  • Cantonal court: hourly wage of CHF 28.45 increased by CHF 2.36 (thirteenth-month salary, 8.30%), 42 weekly hours over 52 weeks (2184 hours), i.e. CHF 67,289.04, to which are added CHF 2,736 in break allowances, for a total of CHF 70,025
  • Disabled income of CHF 59,658, resulting in a degree of disability of 14.8%, rounded to 15%.

The cantonal court based its findings on 2112 hours according to the accident declaration of 29 January 2014, the employer having reported divergent figures (2174, then 2112 hours).

Complaint by the appellant: SUVA argues that the lower court counted the break allowances twice, as in its view these were already included in the 2174 annual hours provided for by the Valais collective labour agreement for the construction sector (2016 working hours), of which 62 hours correspond to the break allowances.

Considerations

The appeal is admissible, as it concerns a final decision (art. 90 FSCA) rendered in public law matters (art. 82 et seq. FSCA) by a cantonal authority of last instance (art. 86 para. 1 let. d FSCA), filed within the prescribed time limits and form. The dispute concerns the degree of incapacity to earn an income entitling to a pension from 1 October 2016, more precisely the income without disability within the meaning of art. 16 GSSLA. The Federal Supreme Court is not bound by the facts established by the lower court, as the proceedings concern cash benefits of accident insurance (art. 105 para. 3 FSCA).

Income without disability must be determined to the degree of preponderant likelihood, by establishing what the insured person could actually have obtained without his disability. This assessment must be as concrete as possible and is in principle based on the last salary earned before the health impairment, with the presumption that the insured person would have continued his activity. This salary includes all income subject to AHV contributions, including accessory earnings and regular overtime.

The Federal Supreme Court finds that the lower court judges could not be criticised for relying on the number of weekly hours set by the employer rather than on the annual duration provided for by the collective labour agreement. Indeed, income without disability must be assessed in the most concrete manner possible, including where the number of hours actually worked exceeds…