Revocation of a DI pension due to improved state of health in cases of unclear syndromal complaints without an organic basis, based on let. a transitional provisions InvIA

Facts

The insured person, born in 1968, suffered a cervical spine sprain in a rear-end collision on 28 October 1998. With effect from 1 October 1999, the DI office of the canton of Zurich granted her a full disability pension together with a supplementary pension for her spouse and two children' pensions (degree of disability 74%, decisions of 3 September 2001). The grant of the pension was essentially based on the multidisciplinary MEDAS report of 22 September 2000, in particular the psychiatric partial report. The notifications of 20 May 2003 and 2 March 2009 confirmed the unchanged entitlement to the pension.

In February 2012, the DI office initiated a review ex officio and arranged a multidisciplinary assessment by the Medical Assessment Institute (ABI). After two appeal proceedings concerning the assessment, the ABI issued its expert report on 1 June 2016. By decision of 1 February 2017, the DI office revoked the pension with effect from the end of March 2017, relying on the transitional provisions of the 6th DI revision (let. a para. 1 SchlBest. InvIA). By decision of 12 May 2017, it retroactively granted reintegration measures from 1 April 2017 and, as an accessory matter, the continued payment of the previous pension.

The Social Insurance Court of the canton of Zurich dismissed the appeal against the decision of 1 February 2017 by ruling of 28 December 2018. The insured person, represented by a lawyer, requests before the Federal Supreme Court that the prior court's ruling be set aside and that a full pension be granted; in the alternative, a comprehensive medical report should be obtained.

The subject matter of the dispute is whether the revocation of the pension was lawful, in particular whether the requirements of a material review under Art. 17 GSSLA or of a review under let. a SchlBest. InvIA are met, and whether the ABI report has probative value.

Considerations

The Federal Supreme Court notes that new facts and evidence may only be submitted insofar as the prior court's ruling gives rise to them (Art. 99 para. 1 FSCA). The outcome of the proceedings alone is not sufficient. Documents created after April 2017 that are not part of the prior court's file therefore remain unconsidered.

Based on the ABI report, the prior court affirmed that, in the case of an unclear syndromal complaint picture without a demonstrable organic basis, there is no longer any incapacity to work relevant under disability insurance law, and that the state of health had improved. Thereby, the requirements of both a material review under Art. 17 para. 1 GSSLA and a review under let. a para. 1 SchlBest. InvIA were implicitly affirmed. Pensions based on pathogenetically-aetiologically unclear syndromal complaint pictures without a demonstrable organic basis are reviewed under this provision within three years of its entry into force and may be reduced or revoked even without the existence of Art. 17 para. 1 GSSLA. The exception under let. a para. 4 SchlBest. InvIA does not apply, since the insured person was about 44 years old when the review began in February 2012 and the receipt of the pension had not yet lasted 15 years. An exception for ongoing pensions exists only for explicable complaints.

The Federal Supreme Court finds that the original pension was granted solely on the basis of an impairment within the meaning of let. a para. 1 SchlBest. InvIA. The MEDAS experts considered the somatic findings to be very modest overall. The reduction or revocation of the pension is therefore permissible within the framework of let. a para. 1 SchlBest. InvIA, which is why the complaints concerning a material review under Art. 17 GSSLA miss the mark.

With regard to the probative value of medical reports, the Federal Supreme Court refers to case law: decisive is whether the report is comprehensive, based on all-round examinations, takes the complained-of complaints into account, was issued with knowledge of the prior records, is convincing, and contains reasoned conclusions. For mental illnesses, systematized indicators according to BGE 141 V 281 are decisive. The question of incompleteness of the establishment of facts and of the requirements for probative value is a question of law, whereas the concrete assessment of evidence is a question of fact.

The prior court correctly assessed the orthopaedic, neuropsychological and psychiatric findings of the ABI report. The orthopaedic expert considered clinical and imaging findings; the clinical examination of back complaints was weighted more heavily than…