They denie permanent disability to a woman after suffering breast cancer and is subsequently fired for “not reaching the minimum degree of limitation required” and justice endorses it

A woman who worked as a geroculator and was affected by breast cancer, has seen how the Superior Court of Justice of Aragon has proved the National Institute of Social Security (INSS) to denied the pension for permanent disability, although it presented limitations in the right arm after a mastectomy and subsequent treatments. The worker was also fired after being declared “not suitable” for her position for the prevention service, through an objective dismissal for ineptitude. For the court, the oncological sequelae did not give to reach the minimum to reduce their professional performance by one third or justify the benefit.

It all starts when this worker began to have health problems, so, in 2020, doctors diagnosed him with breast cancer on the right side, so he had to undergo a total mastectomy and, shortly after, to an axillary lymphadenectomy. Together with these interventions, months of cancer treatments, such as chemotherapy, radiotherapy and prolonged hormone therapy, which extended for several years were added. Then, two years later, breast reconstruction surgery was even necessary.

The impact of all these interventions and treatments was not only physical, but also emotional. As a consequence of the operations, the worker began to suffer persistent pains in the cervical and dorsal zone, in addition to a loss of strength and mobility in the shoulder and right arm, which made it difficult to load weight and perform certain tasks that required physical effort.

Due to this situation and after having to request several medical casualties for temporary disability, the worker decided to request the permanent inability to social security, but it was denied. According to the letter of resolution, the disabilities assessment team (EVI) understood that the injuries did not reduce their work capacity sufficiently and rejected the petition.

The report explained that “objectively the worker does not present in the right arm inflammation or increase in volume, does not carry any compression system, nor has any medication against pain prescribed”, and that there was only a limitation referred to by herself, “without proof of objective elements that report it.” For this reason they decided to deny him incapacity.

In addition, the worker was fired after being declared “not suitable” by the prevention service, but an adaptation of the job was not attempt before proceeding to cease. Consequently, the company applied an objective dismissal for “ineptitude overcome”, protected by article 52.a) of the Workers’ Statute. Given this situation, the woman decided to go to court.

It did not reach sufficient degree for partial disability

Although the Social Court No. 4 of Zaragoza acknowledged the worker the permanent disability in the part of partial, that is, their right to a unique payment to both elevation of 25,247.76 euros, this was revoked by the Superior Court of Justice of Aragon, after a social security appeal.

In this Chamber, Social Security explained that “there are no objective evidence that supports the limitation of mobility alleged by the worker” and that, in any case, there must have been chosen for an adaptation of the job before recognizing any degree of disability. He also claimed that the injuries were prior to the beginning of his activity as a gerocultor, which, in his opinion, ruled out the existence of a new functional decrease that justified the benefit.

For these reasons, the TSJ decided to give the reason to social security and dismiss the resource presented by the worker.

Minimum degree of limitation for permanent disability

In this judgment, the key to which the pension is denied is that, despite the limitations, these did not reduce their functional capacity to the minimum degree required by the law to access a partial permanent disability, which we remember that it must be equal to or greater than 33%, according to the General Law of Social Security, which can be consulted in this official state newsletter.

In this sense, the Chamber explained that “the plaintiff has limitation in the functionality of her right arm due to subjective pain and referred to by it, without proof of objective elements that report it” and that “there is also no evidence of descent of force in that right limb with respect to the contralateral.” That is, it did not have updated reports that were accredited, something important, As the lawyer Victor Arpa explains.

On the limitation at work as a gerocultor, the magistrates explained that according to their functions such as meal preparation, cleaning, supply of user medication or entertainment, this work could be done. According to the sentence, the limitation was only given in those tasks that implied the physical mobilization of people, something that in practice “is carried out with technical means or the collaboration of other colleagues.” Therefore, the worker did not reach the legal threshold of 33% required by the General Social Security Law.