The Superior Court of Justice of Madrid has ruled in favor of a woman to receive total permanent disability for her usual profession as a cleaner after Social Security denied it for not having “limiting” injuries. The woman who suffers from “failed back” syndrome will have the right to a pension of 55% of her regulatory base set at 989.59 euros.
It all starts when the woman who worked in the cleaning and services sector had to begin a medical leave process due to spinal surgery (a L4-L5 circumferential arthrodesis) to treat a foraminal disc herniation and a lumbar protrusion with facet osteoarthritis. Due to this, he developed what is known as “failed back syndrome.”
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After the operation, this woman did not recover and after exhausting the maximum duration of temporary disability, she decided to request permanent disability from Social Security. This was denied.
The reason given by the Disability Assessment Team (EVI) is that his injuries “do not constitute permanent disability in any degree”, that is, he could return to work and continue working. The Medical Court said that the surgery had progressed satisfactorily, the pain was mild and there was no functional loss sufficient to prevent his work.
By not agreeing with her and having dismissed her claim, this woman decided to go to court. Thus, after going through the Social Court, the Superior Court of Justice of Madrid ruled in favor of her right to collect the total permanent disability pension for her usual profession as a cleaner.
Right to permanent total disability
The Social Security appeal before the Superior Court of Justice of Madrid denounced an “improper application of article 194 of the General Law of Social Security”, understanding that the worker’s physical limitations did not prevent her from carrying out her job as a cleaner. Even so, the TSJ ruled in favor of the worker.
The court explains that according to the clinical and functional condition presented by the worker, it was impossible to continue working under normal conditions, since the ailments affected the spine, due to “failed back syndrome.” In this sense, they explain that the job of a cleaner requires a high level of physical effort, since it involves “sweeping or cleaning with a vacuum cleaner, washing and waxing floors, cleaning bathrooms, collecting trash and moving weights on a regular basis”, movements that fall on the spine.
Due to this, the Court ends by saying that the worker can no longer assume these functions “with minimal dedication, efficiency and normality”, which fully justifies the recognition of the degree of total permanent disability.
Inability to carry out the usual profession
The key to the ruling is that the court considers that the set of pathologies of the worker prevents her from carrying out the fundamental tasks of her usual profession, complying with the legal definition of article 194.b) of the General Law of Social Security (can be consulted in this BOE). Said article establishes that total permanent disability is one that “disables the worker from carrying out all or the fundamental tasks of his profession, as long as he can dedicate himself to a different one.”
The court ruling is not based on a single injury, but on the combination of lumbar sequelae, persistent pain and loss of mobility, which decisively limit their ability to carry out cleaning tasks. That is why the Court did not agree with Social Security. Now, although it is a “life pension,” the rule also states that it can be reviewed, but at this time the accredited limitations are permanent and objective.