A 53-year-old woman, affected by the consequences of breast cancer and who worked as a self-employed worker restoring works of art, has managed to get the Superior Court of Justice of Aragon to recognize her right to receive a pension for total permanent disability, after the National Institute of Social Security denied it. In its ruling, the court explains that the loss of strength, the lack of sensitivity in the hands and the tremors are enough for this woman to be unable to continue working in her usual profession, which gives her the right to collect a lifetime pension equivalent to 55% of her regulatory base.
As detailed in the sentence, it all begins when this woman had to take medical leave due to disability. After several tests, she was diagnosed with carcinoma in the right breast (breast cancer). Due to this, the worker had to undergo surgery that included a mastectomy and lymph node removal (lymphadenectomy), followed by several cycles of chemotherapy.
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Although he overcame the tumor, the disease left him with serious physical and psychological consequences; among them, chronic pain in the right shoulder, moderate to severe carpal tunnel syndrome and a depressive disorder. Add to that the medication he had to take caused his hands to tremble.
Due to this situation and meeting the requirements, he requested that Social Security recognize his permanent disability, which was denied. The reason, as reflected in the sentence, is that the Disability Assessment Team said that “he does not present serious anatomical or functional reductions (…) that reduce or nullify his work capacity.” Furthermore, he alleged that they “were not definitive” and that the hand tremor was reversible because it was “favored by iatrogenesis” (due to the medication he was taking). Given this refusal, the woman decided to go to court.
In court, both the Social Court number 6 of Zaragoza and later the Superior Court of Justice of Aragon ruled in favor of the worker. explained that in the profession of art restorer, the necessary skills focus on “continued bimanuality, handling the upper extremities in a continuous, repetitive, agile manner, with strength and precision (fine movements).”
Due to the severe loss of sensitivity in her fingers (which makes it difficult for her to identify and manipulate objects) and the tremor of her hands, it was impossible for the woman to work, not to mention that she could damage the works of art.
The right to a 55% pension and its implications
In this ruling, the key and what the court makes us understand is that permanent disability is not caused by suffering from cancer, but by how this disease and its consequences affect when working, whether in the usual profession or in any other different one.
As for the pension, as it is a total degree that allows you to work in another profession compatible with your disability, you will receive 55% of your monthly regulatory base (which amounted to 1,218.33 euros).
Now, the big question is why he was granted “total” disability (for his usual profession), but denied “absolute” disability (for all types of jobs). Article 194 of the General Social Security Law establishes that total permanent disability disables the worker from performing all or the fundamental tasks of his job, “without preventing him from exercising a different one.” This means that even if you cannot restore paintings again, the law allows you to look for a different job that is compatible with your physical limitations, such as an administrative position or any that does not require physical effort or manual precision.
Furthermore, although the disability is “permanent,” article 200 of the General Social Security Law establishes that the degree of disability may be reviewed in the future in case there is a worsening or, on the contrary, an improvement in the patient’s state of health.