A woman who worked as a cleaner and was affected by breast cancer has managed to get the Superior Court of Justice of Castilla y León to recognize her right to receive a pension for absolute permanent disability, after the National Social Security Institute (INSS) initially denied it. For the court, the consequences of the carcinoma, along with other pathologies, were more than enough to be incompatible with any work activity. Therefore, the worker will have the right to a lifetime pension equivalent to 100% of her regulatory base.
It all starts when this woman, a cleaning professional, began to have health problems. After being examined, doctors diagnosed her with carcinoma in the right breast. As a result, the worker had to go on temporary disability and undergo surgery and harsh oncological treatments, including several months of chemotherapy and later radiotherapy sessions, which lasted until October 2021.
The impact of this treatment was not only emotional, but also physical, since among them, there was a moderate to severe axonal polyneuropathy, which caused symptoms such as persistent tingling, alterations in sensitivity, instability when walking, and even frequent falls.
Due to this situation, after exhausting the temporary disability and faced with the impossibility of returning to work, the worker requested that Social Security recognize her permanent disability. Despite the clinical picture, the Disability Assessment Team (EVI) considered that his limitations were not serious enough and denied him the pension.
According to the opinion, although there were sequelae after the oncological treatment, ambulation and the ability to remain standing were preserved, so there was no functional reduction determining disability. Given this ruling, the worker filed a claim with Social Security, which was denied, so she decided to go to court.
Absolute permanent disability due to the consequences of cancer and other pathologies
In the first instance, the Social Court number 2 of Zamora ruled in favor of the worker, so she did have the right to permanent disability to an absolute degree given her clinical condition. Not satisfied with the ruling, Social Security decided to file an appeal before the Superior Court of Justice of Castilla y León.
In this appeal, Social Security continued to maintain that “the consequences she suffers are not determinants of any degree of permanent disability” and defended that the worker “maintains preserved ambulation and bipedalism” (standing), which is why, in its opinion, the legal requirements to access the pension were not met.
The TSJ corrected the Social Security and ruled in favor of the woman, so she had the right to the absolute permanent disability pension for any profession or trade. The Court explained that “cancer is a disease that, except in primary and barely advanced degrees, is highly disabling due to the consequences it produces, not only due to the disease itself, but also due to the necessary treatments and the psychological impact for the patient.”
Furthermore, he pointed out that the oncological process with treatments such as chemotherapy or radiotherapy “cannot be considered to have overcome the disease until five years have passed without recurrence” (reappearance of a disease).
Inability to do any work
In this ruling, the key is that the court understood that the residual consequences, especially the axonal polyneuropathy and functional limitations, “are incompatible with the development of any work activity with a minimum of efficiency and performance.” For all the reasons stated in the ruling, the TSJ considered valid the right to receive permanent disability at an absolute level, which is equivalent to a lifetime pension equivalent to 100% of its regulatory base.
Now, although this degree prevents carrying out any work activity (hence, 100% of the regulatory base) and in principle is for life, the court explains that the benefit can be reviewed if an improvement is proven, as stated in article 200 of the General Law of Social Security (can be consulted in this BOE).