A woman who works as an operator and who was affected by breast cancer, has achieved total permanent disability, after the National Social Security Institute (INSS) denied it. The Superior Court of Justice of Castilla y León has agreed with him, since the consequences of carcinoma, together with intense neuropathic pain, limited his ability to work, so he will have the right to collect a lifetime pension equivalent to 75% of his regulatory base.
It all starts when this woman who worked as an operator had to leave due to temporary disability on July 24, 2019. After a medical examination, doctors diagnosed her with infiltrating ductal carcinoma of the right breast (a type of breast cancer). Due to this cancer, the woman had to undergo a lumpectomy in July 2019 and oncological treatments, including radiotherapy and adjuvant hormone therapy, as stated in the sentence.
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This treatment generated several serious physical consequences, the most notable being the pain due to intense neuropathic pain, secondary to surgery and radiotherapy, which could not be controlled with multiple treatments. Added to this pain was fibromyalgia, migraines and lumbar disc disease, which made it impossible to work, since according to the oncology report, it prevents “joint mobilization for routine daily activity.”
After exhausting the maximum duration of temporary disability and its extensions and seeing that she was not improving, Social Security proposed her for permanent disability, but it was denied. According to the Disability Assessment Team, the injuries suffered by the worker did not reach “a sufficient degree of decrease in her work capacity to constitute a permanent disability…”. Given this ruling, the worker filed a prior administrative claim, which was rejected, so she decided to go to court.
Total permanent disability due to consequences of cancer and other pathologies
Both in the first instance before the Social Court number 1 of Palencia and later before the Superior Court of Justice of Castilla y León, both ruled in favor of this worker and dismissed the appeal and the allegations of the Social Security who maintained that the injuries “do not make it impossible for the worker to carry out her usual profession.”
But the TSJ explained that “cancer is a disease that, except in primary and barely advanced degrees, is highly disabling due to the consequences it produces, not only as a consequence of the disease itself considered, but also of the treatments that are required.”
Furthermore, he pointed out that to consider that a cure has occurred “a long period of time must pass without recurrence, which… this Chamber has come to set at five years.” A period that had not elapsed in this case since the end of radiotherapy (December 2019).
Inability to do your usual work
In this ruling, what we have to understand is that the court understood that the sum of the consequences (neuropathic pain, shoulder stiffness and the oncological disease itself that has not yet been cured) was “incompatible with the development of an activity such as the one he had.” In addition, he added that the worker could not even perform typical movements of her profession such as stacking boxes, overturning weights and repetitive movements.
Thus and for everything it explains, it is considered good that a woman can receive permanent disability at the level of total qualified, which is equivalent to a pension of 75% of her regulatory base. Although the benefit is long-term, the court recalls in its ruling that the correlate of the “five-year rule” is that if said period passes without recurrence, one can speak of a cure, and, therefore, “the recognized disability is reviewable for improvement in accordance with article 200 of the General Social Security Law,” which can be consult in this BOE.