Occupational pension: remittal due to unfounded failure to address request for continuation of the savings account; denial of violation of the right to be heard and waiver of further expert assessment

Facts

The appellant ([A.] , born 1965), an employee of the Office [B.] , is insured for occupational pension benefits with BVK Personalvorsorge des Kantons Zürich (BVK). In August 2014 she applied to the Invalidity Insurance, citing a ductal carcinoma in situ (DCIS), a state of exhaustion since April 2014, and psychological problems.

Based on the report of Dr. med. [C.] (General Internal Medicine and Cardiology) dated 27 August 2015, BVK granted an occupational disability pension from 1 April 2016 at a degree of disability of 50 % as well as a bridging supplement. After the IV-Stelle des Kantons Zürich had denied a pension entitlement by decision of 23 May 2016, BVK discontinued benefits as of 30 June 2016; it maintained this position by objection decision of 28 June 2016.

On 4 October 2016 the insured person brought an action against BVK with the requests for a pension and bridging supplement from 1 July 2016 and for continuation of the savings account from 1 April 2016 on the basis of the last insured salary. BVK requested dismissal of the action. After upholding an IV appeal of 1 February 2017 (remittal of the IV decision for further investigation), the Sozialversicherungsgericht des Kantons Zürich obtained the IV files, including the psychiatric report of Dr. med. [D.] dated 28 February 2018. In her statement of 5 November 2018, the insured person supplemented her requests: subsidiarily, remittal for a medical-advisor examination regarding cancer-related fatigue (Art. 37 para. 2 of the Regulations) and, in the alternative, for a super-expert opinion (Art. 37 para. 3 of the Regulations).

By decision of 27 February 2019, the cantonal court partially upheld the action and granted a pension and bridging supplement based on a degree of disability of 50 % until 30 September 2017, plus default interest. The request for continuation of the savings account was not addressed in the decision.

The insured person lodged an appeal in public law matters with the Federal Supreme Court, requesting that the decision be set aside insofar as entitlement from 1 October 2017 was denied, and that the matter be remitted to the lower court for consideration of the savings account request and of the requests concerning the pension after June 2016 and a super-expert opinion; in the alternative, that a medical-advisor examination be ordered, or subsidiarily a super-expert opinion.

Considerations

The appeal in public law matters is a reformatory remedy (Art. 107 para. 2 FSCA). A purely cassatory request is nevertheless admissible where the Federal Supreme Court could not in any event decide the matter on its merits, in particular in the case of an incurable violation of the right to be heard or insufficient establishment of the facts. The appeal, which raises such complaints, is therefore admitted.

The Federal Supreme Court examines federal law freely (Art. 95 lit. a FSCA). Findings of fact may only be corrected if manifestly incorrect or in breach of law (Art. 97 para. 1, Art. 105 para. 2 FSCA). The assessment of evidence and the findings on the health impairment and residual work capacity based on medical reports are questions of fact (BGE 132 V 393 E. 3.2) and reviewable only in accordance with Art. 105 para. 2 FSCA.

The duty to give reasons, as a component of the right to be heard (Art. 29 para. 2 Cst.), requires the court to state its guiding considerations. In its decision, the lower court addressed neither the request for continuation of the savings account from 1 April 2016 in its reasoning nor in its operative part. The mere mention in the statement of facts that the request was no longer referred to in the statement of 5 November 2018 leaves open whether a partial withdrawal of the action was assumed or the request was inadvertently overlooked. The decision is in this respect inadequately reasoned, so the matter must be remitted on this ancillary point. Setting aside the entire decision is not justified, however, since the unaddressed request does not affect the entitlement to pension and bridging supplement.

As regards the alleged violation of the right to be heard due to the failure to address the request for remittal for a super-expert opinion, the lower court considered the facts sufficiently established. It reasoned that any cancer-related somatic disorder, according to the findings of Dr. med. [D.] , leads to a limitation of less than 20 %, which does not suffice for a benefit entitlement (at least 25 % incapacity for work). The right to be heard is not violated where the court, after assessing the evidence, is convinced that further evidence would not alter the outcome. No violation of the right to be heard exists in this respect.

The complaint of a violation of the investigative principle concerns whether the somatic state of health, in particular the cancer-related fatigue, required additional investigation. The Federal Supreme Court notes that the psychiatrist Dr. med. [D.] thoroughly considered the alleged fatigue: the…