The Superior Court of Justice of Andalusia has ruled in favor of a home help assistant who asked to go from total to absolute permanent disability due to failed back syndrome, a chronic pain that remains or worsens after spinal surgery. It recognizes him a lifetime pension of 100% of his regulatory base, which is 520.03 euros per month, after Social Security and a court denied it, although the sentence can still be appealed.
According to the ruling (available in the Judiciary), the worker, born in 1958, had already had a total permanent disability for her profession since February 2021. Then he suffered a displacement of one lumbar vertebra over another, with narrowing of the canal through which the nerves pass, and he had been on the waiting list for a year to have surgery.
She underwent surgery in November 2021 and had to return to the operating room in February 2023, because a screw was pressing on a nerve, but neither of the two interventions relieved her pain. In March 2023 he requested that his grade be raised to absolute and Social Security denied it in May, following the criteria of his medical court. The Social Court number 4 of Granada rejected the worker’s claim, so she appealed to the TSJ.
Total disability prevents you from working in your usual profession, but it is possible to do other work, while absolute disability occurs when the person can no longer do any work (that is why 100% of the regulatory base is charged and not a part), this being the difference between total and absolute.
The pain no longer lets him work on anything
The magistrates, after looking at the reports from Traumatology and the Pain Unit of the Baza hospital, point out that, after the first operation, the back pain did not improve and, after the second, it decreased by half for a few months, and then worsened again towards the right leg.
To this we must add that the worker walks with a cane and the doctors gave her a 9 out of 10 on the pain scale, which “gets worse with ambulation” (that is, when walking), only improves when lying down and “is hardly relieved by the medication.”
With all this, the TSJ ends by saying that there has been “a qualitative change in the plaintiff’s clinical physical situation that has worsened since 2021.” And she adds that her back problems prevent her from her job and also from any other job “that, no matter how comfortable or simple they may seem, requires permanence in a job,” something that she cannot offer today with a minimum of performance.
What is failed back syndrome
This syndrome occurs when a person undergoes spinal surgery and the pain still persists, or is worse than before, even though the surgery itself went well. In the case of this worker, it was noticeable in things like these:
- Strong and continuous pain in the lumbar area that goes down to the leg.
- Loss of strength and sensation in the right leg.
- Need to use a cane to walk.
- Poor tolerance to various pain relievers.
However, the diagnosis alone does not provide the pension, since Social Security assesses how the illness or disease affects the worker when working and an illness can affect two people differently.
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Social Security pays 24 monthly payments of the regulatory base at once to workers with partial permanent disability, who only pay income taxes for 70% of that compensation.
In September, the same syndrome appeared in the appeal of a waiter from Madrid with his spine operated on and the screws loosened, and the Madrid Supreme Court denied him disability because his injuries did not prevent him from continuing as a waiter. What counts is what the illness prevents you from doing, as happened with a plumber with a bad back who Social Security saw as suitable for sitting jobs.