Reconsideration of "old" accident insurance pensions is no longer permitted

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In recent years, a practice has become established in accident insurance that allows insurance providers to cancel insurance benefits once awarded for the consequences of a whiplash injury or similar injury under the title of reconsideration. This applies even if the pensions have already been paid out for decades and without the state of health of the person concerned having changed.

Pursuant to Art. 53 para. 2 ATSG, insurance providers can revert to formally legally binding decisions if these are undoubtedly incorrect and their correction is of considerable importance. Reconsideration is permitted without any time limit. This instrument is intended to correct serious errors - which is generally to be welcomed.

Accident insurance benefits are only paid if the health injuries are a natural and adequate consequence of an accident (cf: BGE 115 V 133; cf. for whiplash injuries, equivalent injuries to the cervical spine and craniocerebral trauma without organically objectively proven complaints: BGE 134 V 109). In its judgement of 30 August 20218 (8C_525/2017), the Federal Supreme Court ruled for the first time that there is a reason for reconsideration if the adequate causality was not examined at the time the pension was awarded. It argued that this corresponded to an incorrect application of the law and that the previous pension decision was therefore undoubtedly incorrect. It added that a failure to carry out an adequacy check should be assumed if there were no corresponding references in the files.

In practice, this led to certain insurers systematically reconsidering the pensions they paid to people with whiplash or a similar injury. After many years of receiving a pension and being absent from the labour market, those affected were suddenly left without a livelihood. This was for reasons for which only the legally competent insurer was responsible.

The Federal Supreme Court has now abandoned this case law. In its judgement of 27.11.2024 (8C_698/2023), it recognised that insured persons may be faced with a burden of proof. Whether there is evidence of an adequacy test in the files depends largely on the insurance company. At the time the pension is awarded, the insured person has little interest in checking the files for completeness if they are awarded a pension. In this respect, years later, it would hardly ever be possible to prove an adequacy check.

The Federal Supreme Court stated that an at least implicit adequacy check must always be assumed when awarding benefits, especially as accident insurance recognises the benefit requirements. In the new judgement, the Federal Supreme Court referred back to its previous case law and confirmed that the award of benefits by the accident insurance company includes an implicit adequacy test.

In the new judgement, the Federal Supreme Court annulled the suspension of the pension. The insured person will therefore continue to receive the pension awarded to her in October 2007. However, all those for whom the pension has already been legally cancelled will be left empty-handed. The case law of the Federal Supreme Court does not permit a revision of benefits due to a change in case law - at least not to date. It is now clear that the pensions of many people have been wrongly cancelled. Many of them are likely to have lost their financial livelihood and are now dependent on the social welfare office.

The change in practice is certainly to be welcomed. However, this episode shows once again that case law in the area of social insurance is not coherent and is heavily dependent on individual federal judges. The same arguments that the judges considered against the reconsideration in the most recent judgement should also have led to the rejection of the reconsideration in the decision of 30 August 20218, 8C_525/2017. No new findings or factual circumstances were discussed in the judgement that has now been issued.