Occupational pension provision: entitlement to disability pension in case of multiple sclerosis and onset of incapacity for work during the pension relationship; inadmissible request for transfer of the exit benefit

Facts

The appellant is the pension fund VSAO, represented by a lawyer. The respondent [A.] (born 1974), suffering from multiple sclerosis (relapsing form, since 1991), had been employed as a physician with [B. AG] , a centre for telemedicine, since 1 November 2010. Initially she worked at 100%; on 16 November 2010 a reduction to 60% effective 1 March 2011 was agreed. During this employment relationship she was insured with the pension fund VSAO under occupational pension law.

Based on a registration of September 2013, the IV-Stelle Basel-Stadt granted the insured a quarter pension from 1 March 2014 and a full pension from 1 August 2014, assuming that she had been continuously incapacitated for work and gainful employment since March 2011. In October 2015 the pension fund denied any entitlement to disability benefits under occupational pension provision.

By action of 23 March 2018, the insured sought before the Social Insurance Court of the Canton of Basel-Stadt payment of the statutory and regulatory pension benefits plus interest. The defendant requested dismissal and, in the alternative, that the court order the Freizügigkeitsstiftung of UBS AG to transfer the vested benefits to it. The cantonal court upheld the action by decision of 27 March 2019, ordered the defendant to pay a full disability pension from 3 February 2016 plus default interest of 5%, and ordered the continuation of the retirement account from 1 June 2011.

The pension fund lodges an appeal in public law matters with the Federal Supreme Court and requests dismissal of the action; in the alternative, the Freizügigkeitsstiftung should be ordered to transfer the exit benefit, or the matter should be remitted for a new decision. The primary issue in dispute is whether the insured is entitled to disability benefits from the appellant.

The lower court assumed that the 40% incapacity for work occurred on 1 March 2011, and rejected an interrupted temporal connection as well as a voluntary reduction in workload with reduced insurance coverage. The appellant, by contrast, complained that the onset of incapacity for work in March 2011 was manifestly incorrect and contradicted the IV assessment results.

Considerations

The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA) and is bound by the lower court's findings of fact, unless these are manifestly incorrect or based on a violation of law (Art. 105 para. 2 FSCA). The point in time at which the incapacity for work that led to disability occurred is a question of fact.

Disability benefits under mandatory occupational pension provision are owed by the pension fund with which the person was insured at the onset of the incapacity for work leading to disability (Art. 23 lit. a OPA). A close factual and temporal connection is required between the incapacity for work existing during the pension relationship and the disability that later occurred. A break in the temporal connection generally exists where a work capacity of more than 80% is maintained for more than three months. In relapsing diseases such as multiple sclerosis, it must be examined whether a period of gainful employment lasting more than three months, which is inconspicuous when viewed in isolation, was in fact associated with the prospect of lasting professional activity; the circumstances of the individual case are of particular importance.

If the pension fund disputes its benefit obligation on the grounds that the work capacity was already health-related impaired at the start of the pension relationship, it bears the burden of proof for this.

The Federal Supreme Court considers that the insured performed a 100% workload without longer incapacity for work and without employment-law consequences from 1 January 2008 to 28 February 2011; at [B. AG] she managed a 100% workload from November 2010 to February 2011 with only one sick day. Contemporaneous incapacity certificates for a work capacity reduced by 20% from 1 November 2010 are absent. While it was true that at the start of employment it became apparent that the 100% workload could not be sustained over the long term, the health impairment did not yet manifest itself in an occupational pension law relevant loss of functional capacity. The temporal connection to any incapacity for…