Legislation at cantonal level

In its judgement of 11 May 2023, the Cantonal Court of Basel-Landschaft proved that finding and developing the law is not only the preserve of the Federal Supreme Court, but can also be carried out at cantonal level: Accident insurance is also liable to pay benefits for medical treatment after the case has been closed, even if no pension was awarded when the case was closed. The judgement is legally binding.

In the case in question, the insured person was the victim of an accident in December 2014 when she was hit by a van while standing at the side of the road. She suffered blunt abdominal trauma with a covered bladder rupture, a supraorbital laceration and a slightly displaced nasal bone fracture. At the end of June 2021, the insured person was awarded integrity compensation and the entitlement to a pension was denied (the insured person was fully able to work again from May 2018). At the same time, the assumption of medical treatment costs was discontinued. As a result of the accident, the insured person had a bladder emptying disorder with a latent risk of infection. She was therefore still dependent on regular urological check-ups and the intake of medication. It was undisputed that this treatment was medically indicated and accident-causal.

The law provides for the following: Pursuant to Art. 19 para. 1 UVG, the entitlement to a pension arises if no significant improvement in the state of health can be expected from the continuation of medical treatment [...]. With the commencement of the pension, the medical treatment and the daily allowance benefits cease. Art. 21 UVG provides for exceptional cases in which care benefits and cost reimbursements continue to be paid even after the pension has been determined, e.g. in the event of an occupational disease.

The legal representative argued that these two aforementioned provisions relate to the assumption of medical treatment costs after a pension has been awarded. In general, however, the entitlement to medical treatment is determined by Art. 10 UVG, which does not provide for a time limit on the assumption of costs. The case law of the Federal Supreme Court that Art. 19 UVG also applies to non-pension recipients does not correspond to the legal wording.

The cantonal court followed this reasoning and thus explicitly opposed the case law of the Federal Supreme Court (see, for example, BGE 133 V 57 or 144 V 354). The court used an example to explain what was unconvincing about the previous practice: two insured persons suffered severe hip joint injuries in accidents. Upon reaching the so-called medical terminal condition, both persons are left with permanent pain that requires long-term therapy and they are dependent on shoe inserts. With an ability to work of 90% due to an increased need for breaks, the income comparison in one case results in a degree of disability of 10% and thus a pension entitlement, while the degree of disability in the second case is 8%. For the first person, in addition to the pension, the accident insurance continues to provide the necessary therapies and pays for the shoe insoles. For the other person, however, all benefits end when the case is closed. This means that two insured persons with exactly the same condition can be treated differently when it comes to the provision of medical treatment after the pension has been determined or after the case has been closed.

In its further considerations, the cantonal court sheds light on the previous case law of the Federal Supreme Court and explains that the Federal Supreme Court erroneously extended the scope of application of Art. 19 and the cessation of medical treatment costs to non-pension recipients. In the case of pension recipients, the problem was recognised and Art. 21 UVG was therefore created, which provides for further assumption of costs even after a pension has been awarded (E. 6.1 and 6.2.1). Furthermore, the cantonal court analysed the legislative history and conclusively demonstrated why no conscious decision was made at the time the law was passed to always terminate claims for medical treatment and medical aids when the final condition was reached (E. 6.3).

The cantonal court concludes that the finding established in BGE 133 V 57 that, by law, medical treatment is only granted for as long as a significant improvement in the state of health could still be expected from the continuation of medical treatment is incorrect. The UVG does not provide for such a time limit. Nor can such a time limit be derived from the structure of the law. On the contrary, curative treatment is regulated in the UVG under the third title "Insurance benefits" in the first chapter "Care benefits and cost reimbursements", while cash benefits, which include daily allowances and pensions, are dealt with in the second chapter. It is incomprehensible why an insured person should lose an entitlement under the first chapter even if no pension is awarded or even under discussion. The entitlement of a person not entitled to a pension to medical treatment and aids can therefore be based on Art. 10 UVG without further ado, even after the case has been closed.

This judgement is very welcome and puts a positive end to a long-running discussion among experts. The assumption of costs for medical treatment and medical aids can therefore no longer be capped without further ado, even for insured persons who are not entitled to a pension.