A woman who worked as a cleaner and who was affected by breast cancer has made the Superior Court of Justice of Andalusia recognize her right to receive a pension for total permanent disability, after the National Institute of Social Security (INSS) be denied. As explained by the sentence, for the court the sequelae of carcinoma, together with other physical and psychological limitations and limitations, are incompatible with the functions of their usual profession, so it will be entitled to a benefit equivalent to 55% of its regulatory base.
According to the sentence, everything begins when this woman, who worked as a cleaner in a hospital, began to suffer from health problems. After being examined by several doctors, they diagnosed a carcinoma in the left breast (breast cancer).
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Due to this situation, the worker had to unsubscribe and start a Temporary inability To undergo oncological treatment, which included radiotherapy and hormone therapy. This treatment affected both physically and psychologically, since the sequelae left persistent pain, limitation in shoulder mobility and clear restrictions to make efforts or load weight, affecting their ability to carry out the tasks of their work.
Despite these difficulties, and after exhausting the temporary disability, the worker requested the social security of the Recognition of a permanent disabilitybut after being examined by the disabilities assessment team (EVI), it considered that the functional limitations derived from the oncological pathology did not reach sufficient degree, so they denied the pension. The report indicated that, although there were sequelae, preserved mobility and the absence of lymphedema did not justify a total disability for the cleaner profession. Given this opinion, the worker filed a previous administrative claim, which was also rejected, which finally led her to go to court in search of justice.
Total permanent disability due to cancer sequels and other pathologies
Both the Social Court number 2 of Algeciras and subsequently the Superior Court of Justice of Andalusia proved the woman, recognizing the total permanent disability for the usual profession, despite the fact that social security did not agree insisting that “the injuries she suffers do not reach a sufficient degree of decrease in her work capacity” and defending that the worker maintained a partial mobility in the non -dominant arm allowed to continue doing his work as a cleaners.
In this sense, the TSJ of Andalusia was clear in explaining that the physical limitations, together with the psychological sequels derived from the cancer process and medical reports, made the worker could carry out the fundamental tasks of her employment. In addition, he stressed that, although the sequelae especially affected the non -dominant arm, many of the functions of the cleaners require the use of both arms and a continued physical effort, which is incompatible with the medical recommendations of not loading weight or performing over -affected.
Impossibility of performing the tasks of your work
The key to the sentence is that the court understood that the residual sequelae of cancer, as well as the limitations in mobility and chronic pain, “are incompatible with the performance of the main functions of the cleaner profession within the normal parameters of continuity, safety and effectiveness.” For all the above in the resolution, the TSJ validated the right of the worker to receive the permanent disability pension in the degree of total, which entitles him to a benefit equivalent to 55% of his regulatory base.
The court also recalls that, although this pension is compatible with the realization of another different activity, any possibility of reinstatement to its usual profession for which it has been declared incapacitated is excluded, and that the right to the benefit can be reviewed if in the future an improvement is accredited, as provided by the General Law of Social Security.