A man has managed to get Social Security to recognize his total permanent disability, but not for his usual profession as a plumber in which he worked for more than 20 years, but for his last job as a security guard. The Supreme Court thus supports the criteria of the National Social Security Institute (INSS) and the Superior Court of Justice of Castilla y León, which explained that your usual profession must be the one you performed in the last 22 months before becoming disabled.
This man, born in 1974, developed several serious back problems after more than 20 years working as a plumber. Due to this situation, Social Security recognized his total permanent disability due to a common illness due to a lumbar disc herniation that prevented him from continuing to work. Despite this, after undergoing a surgical operation, the evolution was favorable, so after a review the Social Security proceeded to withdraw his pension, since he did not present a sufficient degree of disability.
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Due to this situation, the man had to return to work life and started working in 2019 as a security guard, a less physically demanding profession. He remained that way for 22 months, until the pain and functional limitations returned, so he again requested permanent disability. At this point, the INSS Disability Assessment Team, after examining his history, denied the benefit, understanding that the injuries “did not reach a sufficient degree of decrease in his work capacity.”
Not satisfied, he filed a claim, alleging that his ailments prevented him from practicing his trade as a plumber and that this should be his reference profession. “I cannot make the efforts required by that job, which has been mine throughout my life,” he defended in his appeal.
Right to permanent disability, but for the new profession
Faced with this situation in which Social Security did not recognize his disability, he decided to go to court. The Social Court No. 1 of Ponferrada agreed with him, declaring that he was affected by total permanent incapacity for his usual profession as a plumber. The judge understood that the consequences derived from his herniated disc and the chronic pain prevented him from carrying out “the tasks of assembly, installation, repair and maintenance of plumbing systems by using manual or electric tools.”
The Social Security, not being satisfied, presented an appeal before the Superior Court of Justice of Castilla y León, which changed the meaning of the ruling. In its resolution of February 26, 2024, the court determined that the plaintiff “is affected by total permanent disability derived from a common illness for his usual profession as a security guard,” and not for that of a plumber (this information is very important in this ruling). According to the Court, the man had worked for 22 months in that position, so “we cannot affirm that the profession of security guard was carried out for a short period of time.”
Two years is not a “residual profession”
Faced with this ruling, the worker filed an appeal for the unification of doctrine before the Supreme Court, insisting that his usual profession should be the one he practiced for more than 20 years. But even so, the high court did not agree with him, dismissing his appeal and confirming the TSJ’s decision.
The magistrates explained that an activity carried out for almost two years cannot be considered “residual”, since jurisprudence only admits it when it comes to periods “of a few months”. Therefore, they concluded that, since it was a common disease and the last job had been carried out for a relevant period of time, the usual profession should be that of a security guard, and not that of a plumber.