Facts
The claimant, born in 1965, worked at a 60% workload as a nursing assistant and night nurse. After a rear-end collision on 12 December 2008 causing a whiplash injury to the cervical spine, she registered with the Disability Insurance on 9 November 2009.
The IV office of the Canton of Zurich conducted medical and vocational investigations, obtained the accident insurance files and had the insured person examined in a multidisciplinary assessment at the Centre for Medical Assessment (ZMB) (expert report of 10 April 2012). After a preliminary decision of 8 October 2012, the insured person alleged a deterioration and had to undergo inpatient psychiatric therapy. The parties agreed on a longitudinal psychiatric expert opinion by a specialist in psychiatry (expert report of 23 December 2015). After statements from treating physicians and therapists (May 2016) and a reply from the expert (11 October 2016), the IV office, by decision of 21 July 2017, denied an entitlement to a pension at a degree of disability of 22%.
The Social Insurance Court of the Canton of Zurich dismissed the appeal by judgment of 30 September 2019. It found that, from a somatic standpoint, the insured person had been able to work since the accident at 50% in her previous occupation and at 80% in light activities. Full probative value was attributed to the psychiatric expert report; psychiatrically, at most a 20% incapacity for work in all activities existed. The court explained the divergent assessments of the treating physicians by the distinction between the treatment mandate and the expert assessment mandate. The cantonal court itself carried out an examination of the indicators, and further investigations as well as the questioning of the treating physicians as witnesses were dispensed with.
Before the Federal Supreme Court, the claimant requested that she be granted a pension based on a degree of disability of 100%, or in the alternative that the matter be remitted to the lower court. The IV office requested dismissal of the appeal. The cantonal court and the Federal Social Insurance Office waived any comment.
Subject matter of the dispute: Whether the cantonal court violated federal law by denying an entitlement to a pension.
Considerations
The Federal Supreme Court examines alleged violations of law under Art. 95 et seq. FSCA freely, without being bound by the parties' arguments, and is bound by the findings of fact of the lower court unless they were established in an obviously incorrect manner (arbitrarily, Art. 9 Cst.) or in violation of federal law (Art. 105 FSCA). Arbitrariness exists only where not merely the reasoning but also the result is untenable; appellate-style criticism is inadmissible. The concrete assessment of evidence is subject only to limited review, whereas questions concerning the probative value of an expert report are reviewed freely.
The claimant argued that the expert report of 23 December 2015 contained no examination of the indicators under BGE 143 V 409 and 418 in conjunction with BGE 141 V 281, and that it was therefore incomplete, and that the cantonal court had wrongly carried out the indicator examination itself. The Federal Supreme Court held that expert reports obtained under a previous procedural standard do not automatically lose their probative value. Decisive in the individual case is whether the existing evidentiary basis, possibly together with further specialist medical reports, permits a conclusive assessment in light of the relevant indicators; where appropriate, a targeted supplementation suffices (BGE 141 V 281 consid. 8). In the present case a conclusive assessment was possible, so the expert report retains its probative value and the cantonal court was entitled to examine the indicators on the basis of the expert report. An examination of the indicators legally validates the medically certified incapacity for work; a greater incapacity cannot result from it.
The independence of the expert was disputed. However, the claimant had expressly agreed in advance to the person of the expert. Reports of external specialist physicians in proceedings under Art. 44 GSSLA may be accorded full probative value, as long as no concrete indications speak against their reliability. The generalised assertion of an economic dependence of the expert on assignments from the Disability Insurance, and the reference to divergent reports of treating physicians that were already taken into account in the expert report, are not sufficient to undermine the probative value. The assessments of the treating physicians E. and F. were rightly…