A painter affected by a Laryinge cancer has made the Superior Court of Justice of Andalusia recognize his right to collect the pension for absolute permanent disability for any profession, after the National Institute of Social Security (INSS) was denied for not complying with the minimum quotes required. In this sense, the Court understood that due to its serious state of health and together with its working life, it could be applied as “parenthesis doctrine” to justify the lack of lack, so it will be entitled to a life pension equivalent to 100% of its regulatory base.
Everything begins when this 59 -year -old man worked as a painter, suffers several health problems, which after various medical tests detect that it is a transglotic epidermoid carcinoma (larynx cancer), in addition to suffering from heart problems, hypertension, hiatus hernia and pains on both shoulders. Due to this situation and after being subject to a total laryngectomy, he asked Social Security to recognize permanent disability.
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Social Security replied denialing it, being the reason, according to the letter of resolution, because it did not comply with the specific lack, that is, the minimum price time required to access this pension when it is not in high or in a situation assimilated to the discharge. In these cases, the General Social Security Law, in its article 195, requires having contributed at least 15 years in total, and within 10 years immediately prior to the causative event, a minimum of three years (1,094 days).
In this sense, Social Security explained to the worker that he only had 323 days quoted in that 10 -year strip, so he did not meet the requirements. Given this refusal, the affected submitted prior claim, which was also rejected, which led him to go to court.
Absolute permanent disability due to larynx cancer
Both in the first instance in the Social Court number 2 of Zamora and later in the Superior Court of Justice of Castilla y León, both gave the reason to the painter and their right to collect permanent disability in the degree of absolute, that is, the limitation for any type of profession.
Although Social Security argued that “it did not comply with the specific price of contribution required by law” and that it did not proceed to apply the parenthesis doctrine. For the INSS, the plaintiff accumulated multiple periods without being registered or registered as a employment applicant, which (in his opinion) prevented the pension.
But the TSJ corrected this approach and failed in favor of the worker. The court explained that the serious disease and the accredited organic and functional limitations were incompatible with the development of any work activity, and that the contribution gaps were not voluntary, but a consequence of the lack of employment and, in the last stage, of the cancer disease.
Specific lack and parenthesis doctrine
The key to the sentence is that the TSJA allowed the parenthesis doctrine to be applied, which allows the periods to be excluded without contributing when the worker was registered as a employment plaintiff or prevented from working for a serious illness. In this case, from 1998 to 2019 the painter maintained an active job search history, with only brief irrelevant interruptions, and stopped registering only when he started his oncological treatment.
With this interpretation, the Court concluded that the worker gathered the 1,094 days of contribution required in the ten years prior to the causative event, thus complying with article 195 of the General Social Security Law. Therefore, he confirmed his right to receive a life pension equivalent to 100% of its regulatory base, with the possibility of review if an improvement is accredited, in accordance with article 200 of the LGSS.