The Superior Court of Justice of Andalusia has recognized the absolute permanent disability to a Mercadona employee, whose request had initially been rejected by the National Social Security Institute (INSS)despite suffering from fibromyalgia, chronic fatigue syndrome, major depressive disorder and other serious pathologies. The court determined that the worker was entitled to a pension of 1,783.64 euros per monthbut established that the economic effects would be recognized from the date of his disciplinary dismissal.
As explained by the sentence to which he has had access NewsWorkwhen a Mercadona employee begins a temporary disability leave due to several serious pathologies, such as fibromyalgia, chronic fatigue syndrome, depressive disorder elderly and other physical and psychological ailments. During the time she was on sick leave, the worker requested that Social Security grant her a permanent disability pension, arguing that these illnesses prevented her from carrying out any work activity.
Subsequently, in February 2020, it was assessed by the Social Security Disability Assessment Team (EVI) and they determined that it was not appropriate to recognize the disability. Given the refusal, the employee filed a prior claim, which was also dismissed.
Despite her state of health, the worker continued to be linked to her position at Mercadona and ended her leave due to temporary disability. However, on October 4, 2021, she was dismissed in a disciplinary manner by Mercadona.
After the dismissal, the worker decided to go to court to demand recognition of her absolute permanent disability, arguing that her pathologies prevented her from reentering the labor market in any profession.
Right to absolute permanent disability
In the first instance, the Social Court no. 1 of Málaga agreed with the worker, recognizing the absolute permanent incapacity for any profession due to its multiple pathologies, such as fibromyalgia or chronic fatigue syndrome among others. In addition, it ordered that the corresponding pension have economic effects from February 2020, when the Disability Assessment Team (EVI) issued its report.
The Social Security was not satisfied, it filed an appeal before the Superior Court of Justice of Andalusia (TSJA), arguing that The economic effects of the pension could not be fixed in 2020, since the worker had been active until his dismissal in October 2021. In the appeal, the INSS maintained that the date of termination of employment should mark the beginning of the pension payment, following the jurisprudence of the Supreme Court.
Once at the Superior Court of Justice of Andalusia, they confirmed the worker’s right to absolute permanent disability, but modified the date of economic effects. He considered that until her dismissal, the employee was active and receiving salaries, so set the start of the pension from October 4, 2021, the date of his disciplinary dismissal.
For its ruling, the TSJ of Andalusia took into account article 193 of the General Social Security Law (LGSS), which regulates the conditions for the recognition of absolute permanent disability. Furthermore, it relied on the jurisprudence of the Supreme Court (remedy 1764/08 and 1287/08), which establishes that economic effects of a pension must coincide with the date of termination of employment when the worker is active at the time of the judicial resolution. In this case, the worker He continued working until his dismissalwhich justified the adjustment in the pension start date.
For all these reasons, the Superior Court of Justice recognized the right to absolute permanent incapacity for any job, for which he will receive a lifetime pension equivalent to 100% of his regulatory base, that is, a monthly pension of 1,783.64 euros per month.