Permanent disability, although they are “life pensions”, the reality is that they can be reviewed by Social Security when it is considered that the beneficiary’s health status has improved. This review carried out by the Medical Court can end with the withdrawal of the pension, although the worker has the right to complain if he understands that his limitations continue to be incompatible with work. This is what happened with a bus driver from whom the National Social Security Institute removed the absolute permanent disability that he had recognized since 2019. Now, the Superior Court of Justice of Catalonia has partially agreed with him and recognizes a total permanent disability, with a pension equivalent to 75% of a regulatory base of 2,593.99 euros.
According to the ruling, the worker, Benigno, had his usual profession as a bus driver and in August 2019, Social Security recognized him as having absolute permanent disability derived from a common illness, with the right to collect 100% of a regulatory base of 2,593.99 euros, with effect from June 30 of that year. The pathologies that justified that declaration were a “major depressive disorder” and a “disorder due to active use of alcohol, cocaine and tobacco, with current functional limitation.”
The Supreme Court confirms that the pension for permanent disability has economic effects from the date on which the ruling accredits the disabling limitations
He receives a retirement pension due to permanent uselessness from the Civil Guard and must return 5,232.75 euros for working two months at Leroy Merlin without giving notice despite the fact that Social Security ended up authorizing that same activity.
The problem and origin of the conflict comes later, when Social Security begins a review of the degree of disability and withdraws the pension. In that file, the administration maintained that the worker had a “THC use disorder” and a “generalized anxiety disorder,” but “without current functional limitation.”
The worker filed a claim, which was rejected, and then went to court where, in the first instance, the Social Court number 27 of Barcelona ruled in favor of Social Security. However, he complained and the case reached the Superior Court of Justice of Catalonia, which after reviewing it gave special importance to a report from the TMB Occupational Medicine service, this report being key to changing criteria.
According to the ruling, the worker went to the company’s medical service after being discharged by Social Security, and in the reinstatement protocol it was detected that he suffered from obstructive sleep apnea syndrome, being treated with CPAP, with an apnea-hypopnea index of 16.4. In addition, there was a positive result for toxic substances in urine, with “positive cannabis and positive cocaine.” Therefore, the prevention service concluded that, “given the risks involved in his job,” he was not in a position to drive a bus temporarily.
Right to permanent total incapacity to drive buses
The TSJ of Catalonia does not accept to restore absolute permanent disability (which is for any type of profession or trade), because it understands that the accredited injuries do not prevent you from carrying out sedentary work or activities in which physical effort is irrelevant. But he does consider that these pathologies are incompatible with his usual profession. The ruling expresses this clearly by stating that there is an “obvious incompatibility between the activity of driver and the conclusions reached by the internal occupational medicine service.”
In this sense, the court recalls the doctrine of the Supreme Court on the joint assessment of ailments. Specifically, it cites that “the injuries and sequelae as they occur in the affected subject must be appreciated together,” so that diseases that separately do not determine a disability can do so when analyzed together.
The Chamber also explains that, in total permanent disability, what is decisive is the habitual profession. That is, it is not enough to analyze whether the worker can perform any job, but rather whether he can safely and effectively perform the essential tasks of his position. In this case, driving a bus requires especially strict guarantees, due to the risk to passengers, traffic and the worker himself.
For all these reasons, the TSJ partially upholds the appeal, revokes the court’s ruling and declares the driver in a situation of total permanent disability. The INSS must pay you a pension of 75% of the regulatory base of 2,593.99 euros, with effect from December 1, 2020, without prejudice to any applicable discounts.