Facts
Parties and instances: The appellant (a trained butcher, born 1963, represented by a lawyer) challenges the revocation of his full disability pension by the IV office of Solothurn (respondent). The prior instance was the Insurance Court of the Canton of Solothurn (decision of 15 July 2019, VSBES.2018.292). The subject matter of the dispute is disability insurance (disability pension, revision).
Accident and grant of pension: On 25 August 2004 the appellant was knocked to the ground and trapped on a pasture by a shying horse that broke through a gate. He sustained a traumatic brain injury, a nasal bone fracture, an eyelid injury, an ankle sprain and an orbital floor fracture (operated). He subsequently complained of neuropsychological deficits. The experts of Clinic [G.] (psychiatry and neurology, 2007/2008) diagnosed an organic brain syndrome and certified full incapacity for work in his previous occupation, but noted that contemporaneous imaging studies of brain damage were lacking. The RAD could not validate the neuropsychological deficits in tests; the RAD general practitioner considered a psychoreactive process very probable. Nevertheless, the IV office granted a full disability pension from 1 August 2005 by decision of 13 October 2008.
Revision: In revision proceedings initiated ex officio, the IV office obtained a neuropsychological report (lic. phil. [M.] , 2016) and a polydisciplinary MEDAS report (7 February 2018). By decision of 13 November 2018 it revoked the pension entitlement by way of reconsideration. The Insurance Court dismissed the appeal.
Requests before the Federal Supreme Court: The appellant requested the grant of a disability pension, alternatively remittal for further investigation, and applied for legal aid. The IV office requested dismissal; the Federal Social Insurance Office waived a response.
Legal issue: Whether the revocation of the pension confirmed by the prior instance, effective at the end of the month following notification of the decision of 13 November 2018 (or the denial of a pension entitlement from 1 January 2019), complies with federal law, in particular whether the original grant of the pension was obviously incorrect and whether self-integration is reasonable.
Considerations
1. Scope of review and examination The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA) and is not bound by the parties' reasoning. However, it in principle reviews only the complaints raised, unless the defects are obvious (BGE 141 V 234 consid. 1). The reasonableness of self-integration also forms part of the subject matter of the pension revocation.
2. Reconsideration on grounds of obvious incorrectness (Art. 53 para. 2 GSSLA): The prior instance correctly set out the requirements for reconsideration (BGE 141 V 405; 140 V 77), the entitlement to a disability pension under Art. 28 InvIA, and the rules on the probative value of medical reports (BGE 134 V 231; 125 V 351). An obvious incorrectness may also exist where the factual investigation is incomplete due to a clear breach of the investigative principle (Art. 43 para. 1 and Art. 61 lit. c GSSLA). The legal question of how the concept is to be applied is freely reviewable, whereas findings of fact are reviewable only for obvious error.
3. No obviously incorrect finding or violation of federal law by the prior instance: The prior instance was entitled to assume that a brain injury capable of explaining the reported deficits was not demonstrated by imaging. The neurological expert of Clinic [G.] himself had expressed reservations, but was persuaded by the subjective statements without arranging his own investigations. It was not objectionable for the prior instance to take into account the RAD neuropsychology assessment, which did not confirm the cognitive deficits, and thereby to remove the basis of the Clinic [G.] report for a coherent assessment of work capacity. The view of lic. phil. [M.] that the earlier investigations had been carried out lege artis did not have to be adopted once the symptoms could not be validated. Nor was it objectionable that incapacity for work from a psychiatric standpoint was excluded and that the assessment of the RAD general practitioner was not relied upon. The medical facts were therefore not sufficiently clarified at the time the pension was granted, and the grant was made in breach of the investigative principle. No breach of federal law is apparent.
4. Probative value of the MEDAS report for the future For the prognosis of the state of health, the situation for the future is decisive; the state at the time of the original grant remains irrelevant once reconsideration is affirmed (ex nunc et pro futuro). The appellant complained in particular about the psychiatric assessment and an influence of the RAD on the experts. The Federal Supreme Court rejected both objections: the deficits could not be objectified psychiatrically either, no psychopathology was detectable, and the treating…