A woman who works as a building janitor, with recent breast cancer, and other psychiatric disorders, added to a degree of disability of 65%, has had her permanent disability pension denied by the Superior Court of Justice of Navarra, thus agreeing with the National Social Security Institute (INSS). As recognized in the ruling, the court considers that, although the plaintiff has recognized that degree of disability of 65%, this does not automatically imply a cancellation of her working capacity for her usual profession.
The worker, who had been unemployed since 2014, requested permanent absolute or subsidiary total disability from Social Security, because she had different ailments and diseases, including dysthymia (mild, but long-lasting chronic depression) and mixed anxiety-depressive disorder. She was diagnosed with HIV (with undetectable viral load) and underwent surgery in 2023 for a malignant breast neoplasm (breast cancer), receiving radiotherapy treatment that ended in June of that same year. In addition, he suffers from obesity and calcific tendonitis in his left shoulder.
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Despite the severity suggested by the diagnoses, the medical reports evaluated by the Disability Assessment Team (EVI) indicate that the patient remains “conscious, oriented” and with “preserved global mobility.” Although he reports sadness and apathy, the magistrates highlight that cognitively “he does not present alterations in memory or concentration”, key factors for his job. Given this, the worker decided to go to court.
The confusion between disability and work incapacity
At the trial, the worker’s lawyer explained that having a 65% disability certificate issued by the autonomous administration (ANADAP), this should be equated to Absolute Permanent Disability according to the General Social Security Law.
Despite this, the Court did not agree and discarded this interpretation. The court explained that the legal article cited by the defense (which is article 363 General Law of Social Security and can be consulted in this BOE) refers exclusively to non-contributory pensions (disability pensions). In the case of permanent contributory disability, what the Medical Court evaluates is not the degree of disability or handicap, but rather how that illness, pathology or limitation limits the time of working, whether in the usual profession or any other.
“Light tasks” and without stress
In this ruling, the key to denying the benefit lies in the court’s analysis of the building janitor profession. Unlike other physical jobs (such as fishmonger or bricklayer), the court considers here that janitorial tasks “do not require high intellectual or physical demands and do not have to be stressful either.”
The court concludes that, after having overcome the acute cancer treatment and the mental ailments being stabilized (without changes with respect to previous rejected claims), there is no “significant impairment” that prevents him from being present at a job. According to the ruling, the worker, despite her difficulties, “can carry out the tasks of her usual profession with professionalism and efficiency,” thus closing the door to the requested pension.