03.03.2025 Publication
No injury benefit for ex-professional footballer despite incapacity for work
In its ruling of 25 March 2025, the Federal Social Court (Bundessozialgericht, BSG) confirmed that an ex-professional footballer is not entitled to injury benefit if he continues to earn during his incapacity for work (B 2 U 2/23 R)
The underlying case
The insured plaintiff has been running a physiotherapy practice as a self-employed physiotherapist since the end of his career. Meniscus damage originating from his active time as a professional footballer was recognised as an occupational illness. As a result of this occupational illness, his attending physician issued him with a certificate of incapacity for work with regard to his work as a physiotherapist. The plaintiff discontinued his physiotherapy work due to his incapacity for work, yet continued to run his practice as the owner. In consequence, he was in attendance at his practice to a much lesser extent and carried out his work in a managerial and administrative capacity to a lesser extent overall. The defendant accident insurance institution rejected the plaintiff’s claim for injury benefit, arguing that the plaintiff was able to continue to run the practice and generate income despite the loss of work as a physiotherapist, meaning that this would not result in a loss of income from his self-employed work.
Regional Social Court of North Rhine-Westphalia refuses to grant injury benefit
The NRW Regional Social Court (Landessozialgericht, LSG) dismissed the claim. Although the claim to injury benefit exists on the merits, no injury benefit is to be paid due to the earned income to be offset against it (Section 52 No. 1 of the German Social Code Book VII (Sozialgesetzbuch VII, SGB VII). The incapacity for work necessary in order to be entitled to the benefit fundamentally exists insofar. This is always the case if the activity can no longer be carried out to its full extent (Section 45 (1) No. 1 SGB VII). The fact that the plaintiff was still able to carry out parts of his previous work - in this case some of the tasks of practice management - does not affect the ongoing incapacity for work. There is no partial incapacity for work. However, the plaintiff must allow the relevant income earned (within the meaning of Section 15 (1) SGB IV) to be offset against the benefit. This income is the profit from self-employment determined under income tax law. There is no breakdown of this profit according to the individual areas of activity - for example into parts from physiotherapy services provided by the plaintiff and other activities – as no such differentiation is provided for in income tax law. Earned income is regularly earned at the time when it actually accrues to the insured person. It is not decisive that the income is earned during the period of incapacity for work. The sole factor necessary for the examination of simultaneity is the time of the actual accrual based on the so-called accrual principle under income tax law. Exclusively the income earned from the self-employed activity for which the incapacity for work has been established is offset against the benefit.
Federal Social Court confirms that earned income is to be offset against injury benefit
The plaintiff's appeal on points of law was also unsuccessful. The Federal Social Court confirmed the opinion of the lower court. Even if it can be assumed that there will be a loss of income when an entrepreneur working full-time in the business is unable to work, the plaintiff had continued to carry out managerial, administrative and business-related activities in his practice during his incapacity for work. The income earned from this consequently had to be offset against the injury benefit. In its decision, the Federal Social Court clarified that injury benefit is fundamentally intended to compensate for the loss of earnings resulting from an inability to work due to an occupational illness or accident. However, if there is no loss of income, there is no entitlement to injury benefit either. The Senate emphasised that it is irrelevant whether the income is generated from personally performed work or from other activities. The solely decisive factor is that the person concerned continued to earn income.
Conclusion: no entitlement to injury benefit in the case of ongoing income during an incapacity for work
Despite being incapacitated for work, the insured person is not entitled to injury benefit if they earn ongoing income during this time in excess of the entitlement. For self-employed insured persons in particular, the result is not a foregone conclusion, as the recognised earned income is derived from the profits generated by the company and therefore not essentially from actually performed “work”. Although such an understanding of earned income does not correspond to common linguistic usage, it does correspond to the understanding under income tax law within the meaning of Section 15 SGB IV, which applies in the present case. The Regional Social Court, as confirmed by the Federal Social Court, consistently applies this standard; the law provides no jurisdictional bases for equity considerations.
