Accident-like Bodily Injury (Unfallähnliche Körperschädigung, UKS)

Concept and Statutory List

The accident-like bodily injury extends mandatory accident insurance cover to injuries that typically occur suddenly but where the unusual external factor required by the definition of accident in Art. 4 ATSG is absent or cannot be proven. Art. 6 para. 2 UVG exhaustively lists eight types of injury: bone fractures, joint dislocations, meniscus tears, muscle tears, muscle strains, tendon ruptures, ligament lesions and injuries to the eardrum. For these listed diagnoses the accident insurer provides its benefits unless they are predominantly attributable to wear and tear or illness.

Development and Burden of Proof

Until the end of 2016 the UKS was regulated at ordinance level in Art. 9 para. 2 UVV and still required a discernible external event. With the UVG revision in force since 1 January 2017 the concept was transferred into the Act and detached from the event requirement. According to Federal Supreme Court case law (BGE 146 V 51), a listed injury gives rise to a statutory presumption of liability; the accident insurer may exonerate itself by proving, on the balance of probabilities, that the injury is attributable to wear and tear or illness to more than 50 per cent across the entire spectrum of causes. The absence of a memorable initial event facilitates this exonerating proof. Where the proof succeeds, responsibility passes to the health insurer.

Practical Relevance

The UKS is the central mechanism for allocating responsibility between accident and health insurers where degenerative pre-existing conditions are involved, notably meniscus and rotator cuff tears. For employers and insured persons the allocation matters financially, because UVG benefits are paid without deductible or co-payment and include daily allowances. An example from practice: Swiss UVG supplementary wordings do not restate the UKS but refer in their accident definition to the UVG rules, so that the listed diagnoses are automatically covered under the supplementary policy as well. In German and Austrian private accident insurance the extended definition of accident performs a comparable but narrower function: Austrian wordings deem dislocations, strains, tears and meniscus injuries to be accidents, and sports group contracts do so even where they result from mere own movement.