A woman who worked as a teleopeora and who was affected by breast cancer has made the Superior Court of Justice of Madrid allow her to continue perceiving the pension for absolute permanent disability, after the National Institute of Social Security (INSS) to retire it by considering that she had experienced an improvement. The Court explained that the worker had not presented any improvement since 2020, so it was not aimed to withdraw the benefit, so she will continue to charge the life pension equivalent to 100% of her regulatory base of 1,607.21 euros.
Everything begins when this worker, named Adelaida, diagnoses him with an infiltrating ductal carcinoma of left breast (breast cancer) and social security grants the permanent disability absolute for any type of work. According to the report of the Medical Court or Disabilities Assessment Equipment (EVI) this appreciation that made it “unable to all regulated work activity.” Therefore and not being able to do any type of work, they gave it a 100% equivalent benefit of its regulatory base.
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Even so, the opinion stated that it could be reviewed by improvement. In this way, in November 2021, the Medical Court once again issued a new report in which it argued that the worker no longer presented sufficient anatomical or functional reductions and that he had experienced a favorable evolution, so he proceeded to withdraw the permanent disability. This was done based on article 200 of the General Social Security Law, which says that disability can be reviewed for improvement, aggravation or diagnostic error until the beneficiary reaches the ordinary retirement age.
Now, although in 2022, Adelaida suffered a recurrence tumor that forced a new surgical intervention and additional oncological treatments, in January 2024 the Provincial Social Security Directorate decided to denied it. Given this situation, he decided to go to court.
Right to continue charging absolute permanent disability for the sequelae of cancer
Although in the first instance, the Social Court number 50 of Madrid gave the reason to Social Security and dismissed the demand of the worker, this changed with the appeal that presented before the Superior Court of Justice of Madrid.
In this room, the worker’s defense insisted that her current clinical situation was substantially equal to that which motivated the recognition of absolute disability, since not only the cancer sequelae persisted, but that new ailments such as prolonged depression, mechanical low back pain and cognitive problems derived from treatments had been added. Social security, on the contrary, maintained that “the injuries it presents do not justify a degree of permanent disability,” insisting that they could carry out work activities adapted to their state.
The TSJ of Madrid concluded that the worker had the right to recover the pension, explaining that the described clinical picture was “incompatible with the performance of any profession or trade with a minimum of efficiency and performance.” In addition, he reiterated that oncological disease and its treatments cannot be considered surpassed when there is relapse, remembering that the applicable regulations allow for improvement for improvement only when it is objectively accredited.
Impossibility of working
The key to this judgment is that the court understood that the residual limitations, both physical and cognitive and emotional, prevent the development of any regulated work activity. The Chamber stressed that the clinical situation of the worker “is substantially equal to the one that already gave rise to the recognition of absolute disability”, and that there were no medical evidence that proved a real improvement.
Therefore, the TSJ recognized the right of teleopeora to maintain absolute permanent disability, which means perceiving a life pension equivalent to 100% of its regulatory base (1,607.21 euros). The ruling also recalls that, in accordance with article 200 of the General Social Security Law, this benefit may be reviewed in the future if a sufficient recovery is demonstrated that allows to reincorporate work.