A woman with breast cancer who worked as a fishmonger has managed to have the Superior Court of Justice of Andalusia recognize her pension for permanent total disability, after the National Social Security Institute (INSS) denied it. As the sentence explains, the consequences of the carcinoma, which caused the loss of 50% of mobility in the left shoulder as well as the inability to make efforts with the arm, were more than enough to qualify for incapacity for the usual profession.
The woman who worked as a fishmonger, after tests, was diagnosed with “infiltrating ductal carcinoma of the left breast T1N0M0”, a form of breast cancer. After learning the diagnosis, she had to undergo treatment that included “neoadjuvant chemotherapy, surgery and radiotherapy” and after this she had to continue with another strong treatment, as well as hormone therapy, so she had to be on sick leave due to temporary disability.
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Due to the harsh treatment, the woman lost mobility in her arm (50% in the left shoulder according to the sentence) as well as a “4+/5 muscle balance and no lymphedema”, which caused her to not be able to move correctly. The medical report itself states that she was “limited to activities of moderate and high intensity and to tasks that require elevation of the affected limb above the horizontal, strength or manual dexterity.”
Despite this situation and given the impossibility of returning to work in his usual profession, Social Security, through the Disability Assessment Team (EVI), decided to deny him the pension in any of its degrees. To deny it, they relied on article 193 of the General Social Security Law.
Faced with the refusal of Social Security and convinced that her physical condition did not allow her to carry out her job, the worker decided to go to court.
Total permanent disability due to cancer sequelae
In the first instance, the permanent disability was rejected by the Social Court No. 1 of Algeciras. The court explained that the worker’s ailments “were not in any of the degrees of disability provided for in article 193 of the General Social Security Law.” Since she was not satisfied with the sentence, she decided to go to the Superior Court of Justice of Andalusia, which after an appeal ruled in favor of her, giving her the right to a total permanent disability pension for her usual profession, in this case as a fishmonger.
The court analyzed the medical reports and ended by saying that his illness left him “limited for activities of moderate and high intensity and for tasks that require elevation of the affected limb above the horizontal, strength or manual dexterity,” which made it unfeasible to continue performing his job.
Therefore, the TSJ concluded that “due to the limitations derived from her illnesses, the appellant was prevented from carrying out the bulk of the fundamental tasks of her usual profession.”
You would not be able to do the most essential tasks of your job
In this ruling, the key that we must take into account is that the court recognized the physical nature of the fishmonger’s work, which involves “tasks of washing, removing scales, chopping, cutting and similar tasks”, all of them dependent on the use of both upper extremities. According to the Court, these functions require a level of effort and coordination that the worker could no longer maintain after the oncological treatment.
Thus, the TSJ was clear in stating that “it is evident that he cannot assume the professional tasks to which we have previously referred,” which justifies granting him total permanent disability. For this reason, the court upholds the appeal, revokes the lower court ruling and orders the INSS and the TGSS to pay the financial benefits derived from such situation, “in the amount and regulatory effects.”
The ruling also recalls that this pension is compatible with the performance of another different activity, but excludes any possibility of reinstatement to the usual profession, in accordance with the provisions of article 198 of the General Law of Social Security, which establishes that total permanent disability “allows the worker to carry out another different activity compatible with his condition, without prejudice to the reviews that may be appropriate in the event of improvement or worsening.”