Facts

Parties and instances: The appellant ([A.] ), represented by counsel, is a music teacher and pianist born in 1960. The respondent is the IV office of the Canton of Zurich (Disability Insurance Office). The lower instance is the Social Insurance Court of the Canton of Zurich (decision of 7 November 2018, IV.2017.00393).

Subject matter: Disability insurance; entitlement to a full pension.

Facts:

  • The appellant suffered rear-end collisions on 2 June 2005 and 12 June 2007, and in December 2007 applied to the disability insurance for benefits.
  • She submitted the court-commissioned expert report of Hospital [B.] dated 8 December 2016, which was prepared in the liability proceedings.
  • By decision of 28 February 2017, the IV office denied a pension entitlement. The Social Insurance Court dismissed the appeal lodged against it.

Point at issue: Whether the lower instance violated federal law by denying a pension entitlement.

Submissions of the appellant:

  • The reasoning was insufficient, as the lower instance did not address her requests for evidence.
  • The diagnoses in the report (chronic cervicocephalic and cervicospondylogenic pain syndrome, polymorphic complaint complex, somatic stress disorder with accentuated personality traits) were wrongly assessed; in particular, there was no Z diagnosis.
  • The valid income had been established in a manifestly incorrect manner. She had requested that the files of the civil proceedings be obtained or that the proceedings be stayed, as the valid income had been the subject of evidence there. The right to be heard and the investigation principle had therefore been violated.

Findings of the lower instance:

  • The report met the requirements for a probative expert opinion; it was to be assumed that the appellant had a 100% work capacity as a piano teacher and in adapted activities.
  • According to the IK extract, income in the years 1995 to 2004 ranged between CHF 15,200 and CHF 47,698.
  • A long-term increase in income was not proven, as no contract providing for longer-term income had been submitted. It was to be assumed that income would be the same as before the first accident.
  • The incomes from 1997 to 2001 were to be used, which yielded an average income of CHF 36,977.95.

Requests before the Federal Supreme Court: Award of a full pension; in the alternative, remittal to supplement the record and for a new decision.

Considerations

Scope of review: The Federal Supreme Court reviews whether federal law has been violated (Art. 95 let. a FSCA). Findings of fact can only be corrected if they are manifestly incorrect or violate the law, and if the defect may be decisive (Art. 97 para. 1 and Art. 105 para. 2 FSCA). The law is applied ex officio, but the review is in principle limited to the complaints raised (Art. 106 para. 1 FSCA; Art. 42 para. 1 FSCA).

Legal principles: Invalidity is governed by Art. 4 para. 1 InvIA and Art. 8 para. 1 GSSLA. For psychological impairments, work capacity must be determined in a structured evidentiary procedure (BGE 143 V 418; 143 V 409; 141 V 281). For employed persons, the degree of invalidity is assessed by comparing incomes (Art. 28a para. 1 InvIA and Art. 16 GSSLA; BGE 130 V 343). For the valid income, what the insured person would most likely have earned as a healthy person at the start of the pension entitlement is decisive. As a rule, the most recently earned income, adjusted for inflation and real wage developments, is used as the starting point; exceptions must be more likely than not (BGE 139 V 28; 135 V 58). Where income fluctuates strongly and has arisen only recently, the average over a longer period is to be used. Professional advancement is only to be considered where there are concrete indications that such advancement was actually realised.

Duty to give reasons and the expert report: The lower instance did not expressly address the requests for evidence. However, the decision implicitly shows why the statements and evidence on income in 2005 were not decisive, namely because individual engagements do not prove a long-term increase in income. The reasoning is therefore sufficient, even though not every submission was addressed individually (BGE 142 III 433 E. 4.3.2). The Federal Supreme Court sees no manifestly incorrect finding: the lower instance accepted the report as probative and therefore adopted the diagnosed impairments, including the psychiatric…