The Superior Court of Justice of Madrid has partially ruled in favor of a 56-year-old El Corte Inglés worker, recognizing his right to receive a pension for total permanent disability due to failed back syndrome. Social Security had denied him absolute disability (which entitles him to 100% of the regulatory base), explaining that the employee retained the authority to perform other less demanding jobs, although he could no longer work as a sales manager.
According to ruling STSJ 16034 (available at this link to the Judiciary), it all began when the employee, who had been working for El Corte Inglés since 1997, began to have back problems. After requesting medical leave due to temporary disability this time, the doctors confirmed that he suffered from lumbar degenerative disc disease and L4-L5 disc herniation. Due to this, he had to undergo surgery on several occasions, but the result was the opposite of what was desired, since not only did he not improve, but he developed the dreaded “failed back syndrome.”
With this situation and seeing the impossibility of returning to work, he decided to request permanent disability from Social Security, but it was denied. In this sense, the Disability Assessment Team (EVI) explained that “he did not present sufficient functional reductions to prevent him from working as a sales manager.”
Thus, and seeing that after a claim he was not proven right even though he received a report that “he had not experienced improvement, continuing with persistent pain despite the treatment and with a low mood,” the worker decided to go to court. His objective was to achieve absolute disability, alleging that his physical and mental state disqualified him from any work activity.
Right to total permanent disability
The Social Court No. 6 of Madrid analyzed the reports and issued a ruling in favor of the worker, granting him total permanent incapacity for his usual profession. The judge found it proven that his pathologies, including failed back syndrome, were incompatible with tasks that required “prolonged standing, handling loads or continuous movement.” However, he clarified that he could still perform sedentary or less physically demanding functions.
The result is a lifetime pension of 55% of his regulatory base, which translates into 3,011.86 euros per month, with retroactive effects from June 11, 2022. The judicial resolution is forceful when describing his condition: he suffers “significant pain radiating to the left leg, severe limitation of mobility and need for help for basic activities such as dressing or grooming”, which confirms the impossibility of returning to his old position.
Not satisfied with the “total”, the worker appealed to the TSJ of Madrid insisting on the absolute, but the Court rejected the request. The court ratified the initial sentence by understanding that “the actor retains the capacity to carry out tasks that allow postural alternation and do not entail the physical requirements of his usual position,” closing the door, for the moment, to 100% of the pension.
What exactly is failed back syndrome?
“Failed back syndrome” is the most common in patients who have undergone spinal surgery. It is estimated that between 10% and 40% of operated patients may suffer from it and what characterizes it is persistent pain that, in many cases, exceeds what the patient had before entering the operating room.
It is a complex pathology that often resists conventional treatments and greatly limits the life of the affected person. Its clearest symptoms are:
- Chronic low back pain after surgery.
- Stiffness and notable loss of mobility in the area.
- Weakness in the legs or difficulty maintaining the same posture (sitting or standing) for a long time.
- Decrease in day-to-day capacity.
- Dependence on continuous medication to cope with pain.
Reviewing the jurisprudence, it is clear that achieving absolute disability for this condition (as occurs with fibromyalgia or multiple sclerosis) is not easy, since sometimes the total disability is not even recognized.
This occurs because Social Security does not have an “automatic list” of diseases to grant pensions. The Medical Court does not judge the name of the pathology, but rather how it impacts the worker’s real capacity. That is why each file is a world and must be looked at with a magnifying glass. And, as this case demonstrates, when the administrative route fails, the judicial route is usually the only option to correct the INSS criteria.