The Superior Court of Justice of the Valencian Community has ruled in favor of Social Security to deny permanent disability to a Mercadona worker. The employee, who suffers from polyarthrosis, severe obesity and urinary incontinence, had been dismissed due to unsuitability by Mercadona following a report that declared her “unfit”, but even so, the Court considers that her ailments do not prevent her from carrying out the fundamental tasks of her profession.
As the ruling explains, the woman was on temporary disability leave for more than a year and a half, from January 15, 2021 to July 7, 2022, due to “pain in the lower back.” After exhausting the maximum duration of temporary disability, she was discharged and requested permanent disability, which was denied by Social Security, since the Disability Assessment Team (EVI) determined that the injuries “do not reach… a sufficient degree of decrease in work capacity.”
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The worker filed an administrative claim requesting that her “absolute permanent disability” or, alternatively, “total permanent incapacity for her usual profession” be recognized, but this was also rejected.
At the same time, Mercadona’s preventive medical service evaluated her in August 2022, classifying her as “unfit to return to her job.” The company’s report noted limitations for “lumbar flexion”, “maintained standing or sitting” and prohibited the “manual manipulation of loads (lifting, traction and pushing) exceeding 5 kg.”
Just two weeks later, in September 2022, the plaintiff “was fired due to sudden ineptitude”, which is protected and regulated in article 52.a of the Workers’ Statute (can be consulted in this BOE).
No right to permanent disability
Faced with the situation of finding herself without work and without disability due to her ailments, she decided to go to court. Thus, both the Social Court and later the Superior Court of Justice of the Valencian Community agreed with Social Security.
The worker tried to claim that in addition to physical limitations, she suffered from “Anxiety and depression,” the consumption of “potent drugs, including opiates,” and the “use of diapers.” But it was still rejected in its entirety.
The TSJ explained that “the evaluation of the evidence is a power that falls exclusively to the trial judge” and that the facts can only be modified if there is a “patent and manifest error,” which did not happen in this case. In this sense, the Chamber determined that this picture “does not transcend to a legally assessable degree the fundamental tasks of the usual profession.” Regarding urinary incontinence, on which the worker focused part of her appeal, the court points out that a urological ultrasound provided “does not prove that there were pathological findings.”
“Not suitable” for the position does not mean inability for the profession
Regarding the Mercadona report in which she declared herself “unfit” and which led to her dismissal, the TSJ explained that “such a decision is an act of one party and is issued in a different sphere.” The court clarifies that a company’s prevention service evaluates “the specific job position and not the worker’s usual profession, which must be understood in a broad sense.”
Thus, the Court concludes that the worker “will be able to perform even the fundamental tasks of her usual profession as a cashier-stocker” and confirms the ruling that denies her disability.