Facts
The IV-Stelle Basel-Stadt (appellant) challenged a judgment of the Social Insurance Court of the Canton of Basel-Stadt dated 5 November 2018, which had granted the insured person (respondent, represented by an attorney) a quarter disability pension from November 2016 onwards.
The insured person, born in 1970, registered with the disability insurance on 19 May 2015, citing an accident in November 2014 (commotio cerebri, contusion of the left lower leg, psychological problems, neck and cervical pain). Relying on the SMAB report of 29 September 2017, the IV-Stelle denied a pension entitlement by decision of 25 May 2018.
Relying on the SMAB report, the lower court assumed a work capacity of 70% to 80% in an adapted activity. A work capacity of 75% was undisputed in determining the disability income. The valid income amounted to CHF 75'331.-. The lower court granted a 10% deduction from the table wage and determined a degree of disability of 40% or 44%.
The only matter in dispute before the Federal Supreme Court was the 10% deduction from the table wage granted by the cantonal court. The Federal Social Insurance Office requested that the appeal be upheld.
Considerations
The Federal Supreme Court in principle reviews only the legal errors complained of (Art. 95 f. FSCA, Art. 106 para. 1 FSCA) and bases its decision on the facts established by the lower court, unless they are manifestly incorrect (Art. 105 paras. 1 and 2 FSCA). The determination of disability income on the basis of the LSE is in principle subject to a deduction. The characteristics (disability-related limitation, age, years of service, nationality/residence category, degree of employment) are to be assessed as a whole at the court's discretion; the deduction may not exceed 25% (BGE 135 V 297 E. 5.2). Whether a deduction is to be made is a question of law.
The cantonal court justified the 10% deduction on the ground that part-time work is statistically paid less for men. The Federal Supreme Court holds that the question of a part-time deduction must be answered by an overall assessment of the individual case and that, in accordance with practice, LSE table T18 is to be consulted. According to it, men without managerial functions in a 75% workload earn above average.
The disability-related limitations are already taken into account in the work capacity reduced by 25% and therefore do not justify any additional deduction. The insured person holds a settlement permit, which according to LSE table TA12 leads to slightly below-average pay. When using the average wage for unskilled activities, the factor of missing years of service is to be disregarded. The age of the insured person (45 years in 2015) has a wage-increasing effect according to LSE table TA9.
Taking into account all relevant characteristics as a whole, no deduction from the table wage is…