Facts
Parties and proceedings: The Swiss National Accident Insurance Fund (Suva) is the appellant. The respondent (insured person) was most recently unemployed and was compulsorily insured against accidents with Suva. The lower court was the Administrative Court of the Canton of Aargau (decision of 27 February 2019, VBE.2018.364).
Facts: According to the claim notification of 10 November 2017, the insured person jumped into the air during sport on 6 November 2017 to catch a ball. When landing on her left leg, a cracking sound was heard in the knee.
Administrative proceedings: By ruling of 16 March 2018, Suva denied its liability to provide benefits, as the knee complaints were attributable neither to an accident nor to an accident-like bodily injury. The objection was dismissed by decision of 7 May 2018.
Cantonal proceedings: The Administrative Court partially annulled the objection decision and ordered Suva to provide benefits. It relied on the 'statements made at the first hour', according to which no accident had occurred, but affirmed an accident-like bodily injury (meniscus tear under Art. 6 para. 2 lit. c AIA). The assessment of the district physician Dr. med. C. of 18 January 2018 (degenerative sequela of an accident in 2013) was not convincing; the report of the treating physician Dr. med. D. of 10 January 2018 (causation by the accident given prior freedom from complaints) prevailed, as Dr. med. C. had not addressed it.
Appeal to the Federal Supreme Court: Suva requests that the cantonal decision and its objection decision be set aside and that the matter be remitted for external medical expert assessment. The insured person requests a competent decision. The Federal Office of Public Health waives its right to submit observations.
Subject matter of the dispute: Whether the cantonal court violated federal law by affirming Suva's liability to provide benefits arising from the event of 6 November 2017, in particular whether a list injury under Art. 6 para. 2 AIA (in the version in force since 1 January 2017) exists and whether Suva has furnished the counter-proof.
Considerations
Admissibility of the appeal: The Federal Supreme Court examines the admissibility requirements ex officio (Art. 29 para. 1 FSCA). Since the appeal is reformatory (Art. 107 para. 2 FSCA), a substantive request is in principle required. The request may also follow from the reasoning. Suva's request for annulment and remittal for supplementary evidence and a new assessment is admissible, as in its view further clarification is necessary. The appeal is admissible.
Applicable law and scope of review: The law in force since 1 January 2017 applies (AIA revision of 25 September 2015). The Federal Supreme Court applies the law ex officio, but reviews only the alleged legal defects (Art. 106 para. 1, Art. 42 para. 1 f. FSCA). It is not bound by the lower court's findings of fact (Art. 97 para. 2 and Art. 105 para. 3 FSCA).
Concept of accident and the 'statements made at the first hour': Relying on the 'statements made at the first hour', the cantonal court assumed a jump to catch a ball and a cracking sound upon landing. An unusual external factor is lacking, so there is no accident in the legal sense. The general objections of the insured person (scuffling, collision) do not disprove this. This finding of fact stands.
Accident-like bodily injury under Art. 6 para. 2 AIA: Under the new law, an external factor is no longer required. The existence of a list injury (Art. 6 para. 2 lit. a-h AIA) gives rise to the presumption of an accident-like bodily injury, which the accident insurer must assume. The accident insurer may rebut this presumption by proving, to the standard of preponderant probability, that the list injury is attributable to wear and tear or illness to more than 50% across the full spectrum of causes. The duty to investigate (Art. 43 para. 1 GSSLA) includes a precise examination of the accompanying circumstances; an initial event does not facilitate the counter-proof where it is not subordinate. Here there is an initial event…