Fibromyalgia is not usually the first cause of permanent disability for workers who suffer from it. One of the most common arguments in this type of test is that “there are not enough parameters to measure pain. For this reason, mental health disorders are often included in a trial, “says Mª José Iglesias Toro, a labor lawyer.
© eldiario.es The San Juan de Dios Hospital in Aljarafe concludes 2013 with nine donations and 95,000 emergency patients.
Now, the Supreme Court of the Canary Islands collects in a sentence two points about this pathology that are not common in disability decisions: it affirms that fibromyalgia is the first reason to give a worker and the court absolute permanent disability. Those who confirm their chronic pain. “Something unusual in this type of procedure, since one of the most common arguments in social insurance is that pain is subjective and does not provide a basis for detecting disabilities,” Iglesias explains to eldiario.es.
For a court to choose an absolute permanent disability that does not have a work function, the victim must present “very accentuated lesions with chronic depression and prolonged development,” emphasizes the lawyer. This is the case of Ana (fictitious name), a waitress in a restaurant. After a process of temporary disability based on the diagnosis of fibromyalgia, the process of permanent disability began. The Social Security Disability Evaluation Team (EVI) has rejected the request.
The employee sued the National Institute of Social Security (INSS) before a court of first instance. The court ruled partially in their favor, granting them a permanent disability and a pension of 55% of their regular base. However, Ana appealed the verdict and asked the TSJ of the Canary Islands to include not only fibromyalgia, chronic fatigue syndrome, anxiety and dizziness, but also the expert tests that diagnose it.
Experts emphasize that one of the samples used to measure the disease is pain. To do this, 18 points are considered, which are distributed symmetrically in the body. Some are in the lower part of the skull and go through the neck, shoulder blades, ribs and knees. The confirmation of eleven pain points implies the diagnosis of the disease and at least 14 points must be identified to achieve a permanent disability.
Restrictions on working life.
In the case of Ana, the 18 pain points are confirmed. The TSJ provides the relevant evidence to confirm its diagnosis. The ruling says that in order to determine absolute permanent disability, the limitations of the work activity should be evaluated instead of the injuries suffered. Even the EVI itself, which initially rejected the nullity petition, showed that the affected woman was dizzy, nauseated and depressed.
“There is an absolute obstacle when the demonstrable circumstances lead to the deactivation of jobs that have a normal salary in the workplace,” says the resolution. This incapacity does not allow a work function to guarantee a minimum of “achievements, effectiveness and professionalism”, unlike permanent disability, which does not hinder the employee in the exercise of other occupations and is the most common type of litigation in this regard. .
The ruling of the Supreme Court explains the absolute permanent inability of the worker to work. He argues that the symptoms described are sufficient to “limit the development employee in acceptable conditions of any type of work or profession” and condemns social security to pay 100% of their salary with the corresponding improvements and revaluations of February 2017 Date in which the claim was initiated.
Mario’s case (fictitious name) is similar. He worked on his own and was dedicated to the transportation of parades. He was diagnosed with chronic fatigue syndrome and fibromyalgia for sleep disorder with recognition of 18 pain points.
The employee requested the processing of the permanent acts of disability, but the EVI did not allow “any anatomical or functional reduction that affects or eliminates the ability to work.” All this despite the fact that two reports from two hospitals in Madrid and Barcelona recognized the pathologies that prevented Mario from carrying out his work normally.
Mario also sued Social Security. In its case, the court of first instance granted an absolute permanent disability, and before the decision of the SS.SS, the Supreme Court of Madrid ruled again in favor of the employee, concluding that the “physical restrictions impeded his profession” Institute for pay 100% of its regulatory base.
The judicial power emphasizes in this process that there is a jurisprudence that considers that fibromyalgia is an absolute or total consequence null. Therefore, in this case, the sentence of the judge of first instance in the TSJ has been taken into account from that moment. The type of pathologies is usually analyzed individually