Facts

Parties and instances: The claimant, born in 1951, had been employed as a landscape gardener by [B. AG] since 1987 and was insured against accidents and occupational diseases with Basler Versicherung AG (respondent). The Cantonal Court of Schaffhausen was the lower instance.

Accident and treatment: On 28 March 2014 the insured person fell onto his right shoulder while doing maintenance work. Diagnoses were a rupture of the supraspinatus tendon and a right subacromial impingement syndrome. On 10 November 2014 a diagnostic shoulder arthroscopy was performed with tendon suture, debridement and decompression.

Administrative proceedings: Basler paid daily allowances until 31 December 2016, medical treatment until 18 August 2016, and integrity compensation for a 10% integrity loss. By decision of 22 March 2017 it denied entitlement to a disability pension. It dismissed the objection by decision on objection of 8 September 2017. The Cantonal Court dismissed the appeal on 29 October 2019.

Subject matter of the dispute: Before the Federal Supreme Court, the only issue in dispute was whether the lower court violated federal law by denying a pension entitlement. The integrity compensation was no longer disputed and had become partially final.

Medical basis: According to the expert report of 18 August 2016, the insured person is 20% incapacitated in his previous work as a landscape gardener. An adapted activity without repetitive movements above the horizontal is 100% reasonable.

Income: The valid income of CHF 54'000.- was undisputed. The lower court determined disability income based on LSE 2014 (table TA1, competence level 1) at CHF 66'453.- after conversion to 41.7 hours. It denied a deduction for disability-related reasons. No loss of earning capacity resulted; even with a 25% deduction the degree of invalidity would have been only 7.7%.

Application of Art. 28 para. 4 AIO: The lower court applied the special rule for older insured persons, although no age-related frailty existed. At the time of the decision on objection, the insured person was of retirement age, so a change of occupation or retraining was considered illusory.

Considerations

Scope of review: The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA), but is in principle limited to the complaints raised, unless the defects are obvious (Art. 42 paras. 1 and 2 FSCA; BGE 145 V 57 consid. 4.2). For cash benefits under accident insurance it is not bound by the lower court's findings of fact (Art. 97 para. 2 and Art. 105 para. 3 FSCA).

Legal basis: The lower court correctly set out the pension entitlement (Art. 18 para. 1 AIA), the concept of invalidity (Art. 8 GSSLA), inability to earn (Art. 7 GSSLA) and the general method of income comparison (Art. 16 GSSLA). The Federal Council, based on Art. 18 para. 2 AIA, regulated in particular in Art. 28 para. 4 AIO the assessment of invalidity for insured persons who, due to their age, no longer take up gainful employment (variant I) or where advanced age contributes significantly to the impairment (variant II). The income that an insured person could earn in middle age is then decisive. The purpose is to prevent excessively high degrees of invalidity and permanent pensions with the character of old-age pensions, since accident insurance disability pensions run until death…