A woman, a waitress by profession and diagnosed years before with infiltrating ductal cancer of the right breast with axillary metastasis, has lost her absolute permanent disability pension after the Medical Court appreciated a “real and verified” improvement, a criterion that has been confirmed by the Superior Court of Justice of Castilla y León. The Chamber explains that, although in 2019 his disability was recognized in the active phase of the oncological process, his current clinical situation no longer justifies maintaining that degree.
According to the TSJ ruling (available at this link from the Judicial Branch), the worker underwent surgery in 2018, received chemotherapy, radiotherapy and prolonged hormonal treatment. After her medical discharge, she obtained an absolute permanent disability, but years later Social Security opened a review file and decided that improvement had occurred, nullifying the benefit considering that she was no longer affected by permanent disability in any of its degrees. The affected person filed a prior claim and, after it was rejected, she went to court to request at least total permanent disability for her job as a waitress.
The worker appealed to have her total permanent disability recognized
In the appeal, the worker’s defense alleged violation of article 193 of the Law Regulating Social Jurisdiction and article 194.1 a) of the General Law of Social Security, maintaining that its consequences did not imply sufficient functional recovery to return to her usual profession. The court recalls in the resolution that total permanent disability is what disables the worker from carrying out “all or the fundamental tasks of his usual profession”, as long as he can dedicate himself to a different one.
The key to the case was determining whether there was a real improvement with employment relevance. To do this, the Court relied on article 200 of the LGSS, which allows the degree of permanent disability to be reviewed due to aggravation or improvement. At this point, the ruling indicates that two requirements must be met in these procedures: a “real and verified” evolution and that the new situation has sufficient significance to justify the change in grade.
Furthermore, the court cites doctrine from the Supreme Court and recalls that the improvement that justifies the review does not consist only of comparing diagnoses, but also of checking whether this evolution has “qualitative significance in terms of the work capacity of the person declared IP.”
The TSJ appreciates that the disease is treated and without signs of recurrence
Based on the medical reports, the Court explains that the worker continues with Tamoxifen treatment, but has preserved mobility in the right upper extremity, absence of lymphedema, independent walking, preserved lumbar flexion and no signs of root involvement. It is also known that the neoplasm treated in 2018 does not show signs of recurrence.
With these data, the TSJ concludes that “the comparative assessment between the concurrent clinical situation in 2019” and the current one “evidence a clear improvement”, as the disease was treated “without signs of recurrence, with relevant functional conservation and without objective limitations of accredited disabling entity.”
The ruling adds that the limitations identified at this time do not prevent the performance of the fundamental tasks of a waitress, even though this activity involves standing and handling light or moderate loads, because “it does not require efforts incompatible with the functional state described in the proven facts.”
For all these reasons, the Superior Court of Justice of Castilla y León rejects the worker’s appeal and confirms the ruling of the Social Court number 3 of Salamanca, maintaining the review of the disability for improvement. The resolution does not impose costs and there was an appeal against it for the unification of doctrine.