Facts

Mr A had an accident on 1 January 2023 and became disabled. In the year before the accident, he earned CHF 40'000 from January to June 2022 at company X, was unemployed in July and August 2022, and earned CHF 35'000 from September to December 2022 at company Y.

I assume that these amounts are gross AHV-relevant wages, that the months stated are full months, that there were no unpaid wage components still due, no 13th salary omitted from the figures, no family allowances to add separately, and no special maximum issue. I also assume that unemployment was the reason for the wage gap in July and August 2022.

Legal Question

What is the insured annual earnings (versicherter Jahresverdienst) for calculating a Swiss UVG invalidity pension where the insured person had two jobs and a two-month unemployment gap in the year before the accident?

Legal Basis

UVG daily allowances and pensions are calculated on the basis of the insured earnings (Art. 15 para. 1 AIA). For pensions, the insured earnings are, in principle, the wage earned during the year before the accident (Art. 15 para. 2 AIA). The ordinance specifies that, for pensions, the basis is the wage earned during the year before the accident with one or more employers, including wage components not yet paid but legally owed (Art. 22 para. 4 AIO).

The maximum insured annual earnings under UVG are CHF 148'200 (Art. 22 para. 1 AIO). This cap is not reached here.

If the insured person earned a reduced wage in the year before the accident because of unemployment, the insured earnings are determined according to the wage the person would have earned without the unemployment (Art. 24 para. 1 AIO). The Federal Supreme Court applies this rule period by period: for the period before a new job starts, the wage before the unemployment is used, while from the start of the new job the actual wage at the new employer is taken into account (BGer 8C_879/2008 consid. 3.2). The exception for unemployment is applied only for those periods in which unemployment caused no or reduced wages, while the actually earned wage remains decisive for the other periods (BGer 8C_549/2007 consid. 8.3.4).

Application to the Case

The relevant period is the year before the accident on 1 January 2023, therefore essentially 1 January to 31 December 2022.

For January to June 2022, the actual wage at company X is counted. That gives CHF 40'000.

For July and August 2022, Mr A was unemployed. Under Art. 24 para. 1 AIO, this unemployment-related wage gap should be filled with the wage he would probably have earned without unemployment. On the assumptions above, the best proxy is the wage level at company X immediately before unemployment. Since he earned CHF 40'000 over 6 months, the monthly equivalent is CHF 6'666.67. For 2 months, this gives CHF 13'333.33.

For September to December 2022, Mr A actually earned CHF 35'000 at company Y. Under the case law, this actual wage at the new employer is used for that period rather than replacing the whole year with the earlier employer’s wage (BGer 8C_879/2008 consid. 3.2, BGer 8C_549/2007 consid. 8.3.4).

The calculation is therefore:

CHF 40'000 for January to June 2022
+ CHF 13'333.33 for July and August 2022
+ CHF 35'000 for September to December 2022
= CHF 88'333.33

Rounded to the nearest franc, the insured annual earnings are therefore CHF 88'333.

Reservations

The result depends on the assumption that the CHF 40'000 and CHF 35'000 are complete gross wages relevant under AHV rules and that no additional wage elements, such as a 13th salary, bonuses legally owed, or family allowances, must be added under Art. 22 para. 2 AIO and Art. 22 para. 4 AIO.

If evidence showed that, without unemployment, Mr A would not have continued earning at the company X level in July and August 2022, the replacement amount for those two months could differ under Art. 24 para. 1 AIO.

Conclusion

On the stated assumptions, Mr A’s insured annual earnings for the UVG invalidity pension are CHF 88'333.33, or CHF 88'333 rounded. The two unemployment months are not treated as zero-income months, but are filled with the hypothetical wage he would have earned without unemployment.