The Superior Court of Justice of Asturias has forced the National Social Security Institute (INSS) to recognize the total permanent disability of a 55-year-old self-employed worker who ran a clothing store and suffers from a “failed back” syndrome that causes chronic pain and difficulty walking. The court considers that his lumbar injuries are “clearly incompatible” with the physical demands of his profession, therefore confirming his right to receive a compensation. life pension of 796.08 euros per month.
It all begins when the worker, Alicia, who was self-employed as the owner of a clothing store 1, had to go on medical leave on May 28, 20202. After exhausting the maximum duration of temporary disability of 545 daysSocial Security automatically initiated a Permanent Disability file, which was denied, explaining the Disability Assessment Team (EVI) that the ailments, despite the functional limitations, were not sufficient.
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The clinical picture presented by the plaintiff and which was submitted to judicial evaluation is the following: “Failed back syndrome after IQ of the lumbar spine due to herniated discs. Chronic S1 radiculopathy in the context of L4-S1 lumbar arthrodesis with epidural fibrosis.”
Since Social Security did not agree with her, this worker decided to go to court. Thus, in the first instance, the Social Court number 3 of Oviedo upheld the claim and agreed with him, recognizing his total permanent disability, that is, the one that disqualifies him from his usual profession.
The Social Security (INSS), as it was not satisfied, presented an appeal before the Superior Court of Justice of Asturias, which also agreed with the worker and dismissed the appeal from the INSS9, confirming the total permanent disability.
Inability to carry out the usual profession
The Social Security appeal before the TSJ denounced a “violation, due to erroneous interpretation, of article 193 of the General Social Security Law and argued that Alicia’s injuries did not prevent her from performing the essential functions of her profession as a sales assistant.
In addition, it highlighted the proven fact that the plaintiff had hired a part-time worker. The court did not agree with Social Security, as it explained its decision based on the serious functional limitations derived from the worker’s chronic clinical condition, which had been considered in a “chronic state with disabling characteristics” as early as January 2022.
The magistrates explained that the ailments and their functional repercussions demonstrate the worker’s disqualification, citing: “lame gait of the MII, requiring a crutch in the right hand… Weakness of MII… positive left Lassègue.” The sentence insists that medical check-ups confirm his condition, with a diagnosis of “disabling failed back syndrome” and, importantly, without improvement.
The key to the sentence is the incompatibility of the ailments with the demands of the position, even with a female employee. The TSJ points out that the salesperson profession requires, “in any case, prolonged ambulation and standing and overloads of the lumbar spine.”
In this sense, the court settles the question of the self-employed by citing jurisprudence of the Supreme Court: “it is not the mere exercise of ownership of the business that must be taken into account to qualify the total permanent disability, but the activity that requires the habitual, permanent and direct exploitation of the same, in such a way that to reject such a degree of disability it is not enough that one can manage it, but one must be in a position to exploit it in terms suitable to the effectiveness of its economic activity, not relegated to the performance of mere ownership.”
Thus and for everything explained, the court considers that Alicia’s functional limitations prevent her from carrying out the fundamental tasks of her profession with the “dedication, performance and effectiveness” 18 that should be required of her, which fully justifies the recognition of total permanent disability.