Termination of a disability pension due to an expert report lacking probative value under revision law; remittal for a judicial expert assessment

Facts

The insured person, born in 1962, was last employed as an operations mechanic until July 2006. After a car accident he suffered in Cuba in 2004, he registered with the disability insurance (IV) in April 2006; in 2009 he applied for a helplessness allowance.

By decisions of 30 June and 14 July 2009, the Zug Cantonal IV office granted him a full disability pension including two child pensions from December 2005, and an allowance for mild helplessness from March 2008 (degree of disability 100%). The Swiss Accident Insurance Institution had already granted him a disability pension (100% incapacity for gainful employment) and a compensation payment for impairment of integrity (9.5%).

In the revision proceedings initiated in 2011, the IV office ordered a multidisciplinary assessment by SMAB (expert report of 25 June 2013) and had the insured person under surveillance on 11 days between October 2012 and April 2013. Because the Regional Medical Service expressed doubts about the psychiatric partial assessment, the IV office ordered a further assessment; the appeal against this was dismissed by the Cantonal Administrative Court of Zug on 22 January 2015. Based on the interdisciplinary report of Dr. med. [D.] and lic. phil. [E.] of 12 November 2015 (supplemented on 17 December 2015 and 4 January 2016), the IV office terminated the pension with effect from 31 January 2017 (decision of 2 December 2016; degree of disability 38%).

The Cantonal Administrative Court of Zug dismissed the appeal by decision of 20 December 2018. The insured person files a public law appeal and requests a finding of a violation of the right to be heard, continued payment of the full pension, removal of the surveillance records, alternatively a superior expert report, and reimbursement of the costs of the party expert opinion of the assessment body [F.] (CHF 17'316). The IV office requests dismissal; the FSIO waives a response.

The subject matter of the dispute is the termination of the full pension under Art. 17 para. 1 GSSLA, specifically whether the insured person is entitled to a full pension beyond 31 January 2017.

Considerations

The Federal Supreme Court examines the application of law ex officio (Art. 106 para. 1 FSCA) and is bound by the factual findings of the lower court unless they were established in an obviously incorrect or legally flawed manner (Art. 105 FSCA). The state of health and work capacity as well as the specific assessment of evidence are questions of fact; by contrast, the incomplete establishment of legally relevant facts, the violation of the investigation principle and the requirements for the probative value of expert reports are freely reviewable.

An expert report prepared for the purpose of a pension revision has probative value only if it sufficiently addresses the evidentiary question of a material change in the facts. A conclusion that is in itself coherent is not sufficient if it does not adequately address the extent to which an effective change in the state of health has occurred, unless it is evident that the circumstances have changed (Art. 17 para. 1 GSSLA).

The complaint of a violation of the right to be heard (Art. 29 para. 2 Cst.) is unfounded, since the reasoning does not have to refute every argument, but may be limited to the points essential to the decision, provided the affected party is able to challenge the decision appropriately.

The [D.] /[E.] report meets the requirements for an initial assessment of entitlement to a pension, but lacks probative value for the revision: the experts assessed the matter without reference to the health situation at the time the pension was originally granted, because the administration had not asked them to do so. The supplements of 17 December 2015 and 4 January 2016 do not change this, since no new examination took place and the experts neither revised their statement on the inpatient incapacity for work since 2006 nor explained the change in the cognitive findings on which the 2009 decision was based.

A revision-relevant improvement nevertheless cannot be excluded, in view of inconsistencies and aggravation on the part of the insured person. The report of the assessment body [F.] of 23 December 2016 does not address the question of an improvement in the relevant…