A woman with breast cancer and who worked as a cleaner has not achieved absolute permanent disability after the Superior Court of Justice of Andalusia rejected it following the refusal of the National Social Security Institute. As the sentence explains, the consequences of the disease prevent him from continuing with his usual work due to the strength it requires, but the magistrates consider that his condition allows him to carry out other types of simpler work.
This worker born in 1985 (that is, she is 40 years old) was diagnosed with infiltrating ductal carcinoma in the right breast, so, after receiving this news, she had to undergo chemotherapy treatments and a double mastectomy. Added to this were very painful later complications, as she suffered severe capsular contracture and various infections that forced doctors to remove her breast implants.
As a result of this entire process, the woman developed lymphedema in her right arm that causes pain when moving. In addition, he suffers from lumbar disc disease and a mixed adjustment disorder due to the great emotional impact of the disease. Despite this complex clinical picture, Social Security decided to grant her only total permanent disability for her cleaning profession.
The cleaner was convinced that her physical and psychological limitations prevented her from facing any work day; The affected person went to court to claim absolute disability.
The border between total and absolute disability
In the first instance, the Social Court number 4 of Granada rejected his request and agreed with Social Security. The worker then decided to file an appeal before the Superior Court of Justice of Andalusia seeking to have the complete nullity of her work capacity recognized.
The Andalusian high court analyzed all the medical reports provided. The magistrates recognized that the woman attends psychological therapy at the Spanish Association Against Cancer due to her state of anxiety and constant sadness. Despite this, they highlighted a fundamental medical detail for their final decision and that is that there is no evidence that he is receiving psychiatric treatment in a Mental Health Unit or that he suffers from a major depressive disorder.
Based on the General Social Security Law, justice establishes a very clear difference between not being able to do your usual job and not being able to do any work.
Suitable for simple tasks without mental load
In this judicial resolution, the key lies in the assessment of its remaining capacity. The court fully understands the demanding nature of the cleaning job. That profession requires continuous use of the arms, manipulating loads, and applying force and dexterity. For this reason, they support him collecting his pension for total permanent disability, that is, that he will receive 55% instead of 100% of the regulatory base and that he will be able to combine it with a job compatible with his limitations.
To deny the absolute degree, the TSJ explains that the patient’s overall consequences are not incompatible with all work activity. That is to say, the Court understands that, from a physical point of view, it cannot be understood that a woman is incapacitated for light, simple or sedentary work. The judges add that these tasks could be carried out in a domestic environment and without entailing a great mental load.