Insufficient correction options for IV assessment
Published: Tuesday, Jul 23rd 2024, 12:20
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The ordinance on the assessment of the degree of disability based on statistically determined table wages, which is valid from the beginning of 2022 to the end of 2023, is partially contrary to federal law. This was decided by the Federal Supreme Court. The reason for this is the inadequate options for correcting the table wages in individual cases.
In this particular case, the work capacity of a construction worker was estimated at 50 percent. The Social Insurance Court of the Canton of Basel-Stadt calculated a hypothetical disability income of CHF 33,000. This is the result of a ruling published by the Federal Supreme Court on Tuesday.
The cantonal court made a deduction of 15 percent from the so-called LSE table salary, which is determined on the basis of the biennial salary structure survey conducted by the Federal Statistical Office. With the deduction, the court took into account aspects such as part-time work and residence category, which resulted in a disability income of CHF 28,000.
Compared to the assumed salary of CHF 68,640 without health damage, this resulted in a degree of disability of 59%. In its appeal, the Federal Social Insurance Office argued that a maximum deduction of 10 percent was permissible according to the provisions of the Invalidity Insurance Ordinance (IVV).
No change intended
The Federal Supreme Court states that the maximum correction deduction stipulated by the Federal Council in the ordinance does not comply with federal law. In particular, the materials on the amendment of the Federal Disability Insurance Act (IVG) show that the previous case law of the Federal Supreme Court should essentially be adopted at ordinance level and that the determination of the degree of disability should remain fundamentally unchanged.
However, the Federal Council, as the legislator, chose a different path. The legislator probably had different expectations with regard to the implementation of the amended IVG in the IVV.
If, due to the circumstances of a specific case, there is a need to make adjustments to the LSE table salary beyond the correction instruments regulated in the IVV, the previous principles of federal court case law, which provide for further possibilities, should therefore be used as a supplement. (Judgment 8C_823/2023 of 8.7.2024)
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