The Superior Court of Justice of the Basque Country has proved the right to Mercadona recognizing the total permanent disability after having suffered a work accident by lifting a box and noticing a pull on the right shoulder while performing replacement tasks. In spite of medical treatments and surgical intervention, the employee continued with functional limitations that prevent the development of her usual activity as a cashier-reponement for what they recognized the inability to her usual profession.
As detailed by the sentence of 2025, the woman worked as a cashier-reponor in Mercadona when on January 31, 2020, going down a pallet at her job, she suffered a “strong pull on the shoulder” right. That same day he went to FREMAP medical services, where he was diagnosed with an adhesive capsulitis (also known as frozen shoulder). Due to the injury, shortly after this worker initiated a medical leave for temporary disability, during which he underwent rehabilitation, infiltrations and different medical tests.
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Despite the treatments, the worker did not improve, so in 2021 she was practiced a surgery in the right shoulder (according to the sentence a Mumford acromioplasty and technical sentence), but after the operation the pain intensified and persisted the lack of strength in the dominant arm, which limited the basic activities of her daily life and those of her position in the supermarket.
For this reason, Social Security acknowledged that it was a “occupational disease, related to shoulder overload in the performance of its cashier-re-reponator tasks.” In spite of this, in December 2021 he requested and denied the permanent disability, considering that “the definitive injuries that they present do not affect their ability to work in any sufficient degree to constitute a permanent disability.”
The worker filed a previous claim, which was dismissed in March 2022 and due to this situation since her injury did not improve decided to go to court requesting that she be recognized the total permanent disability derived from occupational disease, or failing that, partial permanent disability.
The injuries prevented him from working normally
In the first instance, the Social Court number 8 of Bilbao dismissed the lawsuit, understanding that the sequelae in the shoulder “did not reach sufficient gravity to disable it for its usual profession”, since it maintained the ability to “raise the arm above the cephalic plane, presenting only limitations in the last degrees of active mobility of the shoulder.”
The worker resorted to the Superior Court of Justice of the Basque Country, providing new medical reports that proved that pain and lack of strength persisted even after surgical intervention, in addition to presenting “paresthesia in the right hand after intervention of the right shoulder, being pending study by neurophysiology.” These evidence confirmed that the ailment had chronified and that rehabilitation had not managed to improve its situation.
The TSJ of the Basque Country valued these limitations and stressed that the cashier-re-reponator position “demands physical efforts, including load manipulation, realization of repetitive movements of the dominant upper limb and maintenance of forced and ergonomically unfavorable postures”, tasks that were incompatible with their physical condition.
Right to total permanent disability
With all this, the TSJ revoked the instance sentence and recognized the right of the worker to a total permanent disability derived from occupational disease, with a regulatory base of 21,731.88 euros per year. The responsibility in the payment of the benefit was distributed between the INSS (34.38 %) and the mutual Fremap (65.62 %).
The resolution explains that the functional limitations (persistent pain, loss of strength and reduced mobility in the right shoulder) prevent the worker from performing normally, continuity and efficiency the essential functions of her position. For this reason, the provision corresponding to the total permanent disability, with a lifetime and in 12 payments is granted.