Facts

Parties and instances: The appellant ([A.] , born 1965) was represented by attorney Luzius Hafen. The respondent is the Stiftung comPlan as occupational pension institution, represented by attorney Dr. Isabelle Vetter-Schreiber. The prior instance is the Administrative Court of the Canton of Bern (decision of 28 November 2018, case number 200 18 253 Cst.). The Federal Supreme Court decides as II. Social Law Division (judgment 9C_23/2019 of 10 May 2019).

Subject matter: Occupational pension, specifically the entitlement to a full disability pension from occupational pension.

Facts:

  • From 1 September 2010 the appellant worked as Senior Solution Consultant at [B. AG] and was therefore insured with comPlan.
  • From 7 August 2012 he was unfit for work and received daily sickness benefits.
  • In February 2013 he registered with the IV office of the Canton of Zurich. By decision of 26 August 2014 it denied a benefit entitlement for lack of a disabling health impairment. The appeals were unsuccessful (decision of the Social Insurance Court of the Canton of Zurich of 29 May 2015; judgment of the Federal Supreme Court 8C_558/2015 of 22 December 2015).
  • In August 2016 the appellant registered again with the disability insurance. The now competent IV office of the Canton of Thurgau granted a full disability pension from 1 February 2017 by decision of 1 February 2018.

Proceedings: By action of 4 April 2018 the appellant demanded from comPlan a full disability pension from occupational pension from January 2016, plus 5% interest from the filing of the action. The Administrative Court of the Canton of Bern dismissed the action by decision of 28 November 2018, insofar as it was admissible. By appeal in public law matters the appellant requested the annulment of this decision, alternatively remittal to the prior instance.

Disputed question: Whether comPlan is liable to provide benefits, in particular whether the temporal connection between incapacity for work during the pension relationship and later disability was interrupted by the work capacity between 18 November 2013 and 26 August 2014, and whether the first IV assessment is binding for occupational pension purposes.

Considerations

New facts and evidence: Before the Federal Supreme Court only novel facts are admissible that were prompted by the prior instance's decision (Art. 99 para. 1 FSCA). The orders of the Public Prosecutor's Office II of the Canton of Zurich of 9 January 2019 submitted by the appellant are genuine novae and therefore inadmissible. The Federal Supreme Court applies the law of its own motion, but examines only complained-of legal defects and bases its assessment on the facts established by the prior instance (Art. 106 para. 1, Art. 42 para. 1 f., Art. 105 para. 1 FSCA).

Liability and temporal connection: Disability benefits under mandatory occupational pension are owed by the pension institution with which the person was insured when the incapacity for work leading to disability occurred (Art. 23 let. a OPA). A substantial and lasting loss of functional earning capacity of at least 20 percent is required. The entitlement presupposes a close material and temporal connection; an interruption exists where, for more than three months, work capacity of over 80% in an adapted activity existed (BGE 144 V 58). These principles serve the appropriate delimitation of the liability of several pension institutions.

Binding effect of the IV decision: An IV decision binds the occupational pension institution if it was involved in the IV proceedings, the specific question was decisive for the pension entitlement, and the IV approach is not manifestly untenable (BGE 133 V 67). The file as it stood when the decision was issued is decisive; facts asserted subsequently are relevant only through revision. On the question of applying Art. 17 GSSLA where health has changed (BGE 141 V 9), the Federal Supreme Court notes: the material revision concerns the newly arisen entitlement and not the period already assessed, and the binding rules for occupational pension remain applicable.

Second IV assessment (Thurgau decision of 1 February 2018): No binding effect of this decision exists for the earlier period. Because of the waiting year (Art. 28 para. 1 let. b InvIA) and the earliest possible start of the pension (Art. 29 para. 1 InvIA) in February 2017, only the uninterrupted incapacity for work from February 2016 was relevant. Whether a material revision existed or the decision was clearly erroneous (Art. 53 para. 2 GSSLA) did not need to be answered. The complaints regarding the failure to involve comPlan therefore fail.

First IV assessment (Zurich decision of 26 August 2014): The appellant argued that the question of the temporal connection had not been examined in depth and that the regulations provide an entitlement already at a degree of disability of 25%. The Federal Supreme Court notes that Art. 19 para. 1 of the regulations expressly limits the entitlement to persons who are disabled within the meaning of the IV. The question of the IV relevance of the incapacity for work was central…