The Superior Court of Justice of Asturias has confirmed a permanent total disability pension for a cook for his usual profession due to the irreversible injuries he suffers from his right ankle. It is equivalent to 55% of its regulatory base of 2,615.05 euros per month (14 monthly payments) plus the relevant revaluations, so it would be around 1,438.28 euros. Contrary to the criteria of the National Social Security Institute (INSS), the court determines that the injuries prevent him from complying with the demands of prolonged standing that his job requires.
The employee in question, born in 1975, worked as a cook and began a temporary disability process due to a non-work accident in May 2022, which was exhausted after 545 days in November 2023. On a medical level, he suffered from a chronic right ankle sprain (grade III) and a rupture of the external lateral ligament.
For this reason, he had to undergo surgery twice: first in November 2023 and, after a re-break, a second open surgery in November 2024. Despite his clinical condition, the INSS denied him permanent disability, alleging that his injuries did not reach a sufficient degree of functional decline. Months later, in July 2024, the worker was fired due to “unsuspected ineptitude.”
Sue the INSS to obtain permanent disability
Given the denial of the INSS, the worker went to court and the Social Court No. 5 of Oviedo ruled in favor, upholding his claim. This recognized him with a total permanent disability for his usual profession equivalent to 55% of his regulatory base, with effect from April 2024.
Not satisfied with the ruling, the INSS appealed it, filing an appeal against the lower court ruling. In this, he denounced the violation of article 194 of the General Social Security Law (LGSS), arguing that, despite the symptoms of ailments, the worker was not incapable of continuing to practice his profession as a cook.
The TSJ of Asturias confirms the total permanent disability
The Superior Court of Justice of Asturias dismissed the INSS appeal based on the requirements for the recognition of permanent disability (article 193 of the General Social Security Law): the ailments must be objective, foreseeably definitive (irreversible) and serious, so that they reduce or nullify work capacity.
Based on this basis, the court explains that the assessment of permanent disability must be directly related to the physical demands of the worker’s profession. In this case, the TSJ confirms the conclusion of the lower court, which determined that the profession of cook requires that the work be performed standing (statically and dynamically standing) for most of the working day.
Given the serious condition of his ankle, the court concludes that the worker suffers irreversible anatomical and functional reductions that represent permanent impairment, preventing him from carrying out the fundamental tasks of his job with the necessary professionalism and dedication, without subjecting himself to additional suffering or risks. Furthermore, it highlights that the INSS did not question the facts proven through the appropriate procedural means.
Consequently, the TSJ of Asturias fully confirmed the lower court ruling, ratifying the granting of total permanent disability in favor of the worker. This ruling makes it clear that the assessment of permanent disability must be based on the real functional limitation compared to the fundamental tasks of the usual profession. An appeal could be filed against it for the unification of doctrine before the Supreme Court.