Friday, March 29

THE TSJEx returns her pension for work disability to a self-employed woman despite changing her activity


INSS Treasury in Badajoz. / TODAY

Social Security and a Social Court had withdrawn it because they considered that he had improved and had changed his profession

A ruling by the Superior Court of Justice of Extremadura (TSJEx) annuls the decisions of a Badajoz Social Court and the National Social Security Institute (INSS) that had withdrawn a pension for Total Permanent Disability from a self-employed worker with degenerative cervicoarthrosis having recovered from his injuries.

The High Court thus annuls the judgment subject to appeal. This dismissed the worker’s claim and confirmed the action of the managing entity (INSS), which in a grade review file extinguished a Total Permanent Disability benefit recognized in 2018 by court ruling for improvement.

The complainant, born in 1967 and affiliated with the special regime for self-employed workers (RETA), began a file in 2017 for the recognition of her incapacity for work. The INSS denied her request, and this woman turned to the courts, which in April 2018 recognized her as Totally Incapacitated for her usual profession of raising and fattening pigs.

But in August 2020, the INSS ex officio requested a review procedure of the file and decided to revoke the degree achieved. It thus declared the plaintiff as not permanently disabled, that is, fit to work.

Faced with such a situation, and after the pertinent prior claim before the INSS, the worker, legally represented by the labor lawyer Álvaro Jiménez Bidón, returns to resort to justice. But in this case, in December 2021, the Social Court of Badajoz endorsed the Social Security decision and confirmed the loss of any degree of incapacity for work, since “we are not facing the same medical chart as the one established in the year 2018 by ruling and currently the plaintiff (complainant) does not perform the same functions, being the slight limitations and only for activities of great effort and regulated in regulations, which would not be those of her commercial activity (her current activity in the worker regime self-employed).

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And it is here where, for the Superior Court of Justice of Extremadura, both the INSS and the judge of first instance have made two serious errors: one by considering the exercise of a profession other than the one carried out in the recognition of disability as cause for review . Thus, both the Social Security file and the appealed judgment seem to carry out their prosecution as if it were a new degree, based on the plaintiff’s current profession, self-employed business, the firm reports in a note.

According to the speakers of the TSJEx «it is not a matter of assessing whether, after an eventual improvement in the clinical picture, the worker can carry out commercial work on her own account. We are in a record of review of the degree of a recognized total permanent disability, therefore, in attention to a specific profession, in this case the self-employed activity of breeding and fattening pigs, which cannot be altered ».

On the other hand, regarding the second error in the assessments of Social Security and the Social Court, the Superior Court of Justice of Extremadura is conclusive: «The differences in the patient’s medical chart and its limitations are nuanced, without qualitative transcendence. Thus, the worker initially presented cervicoarthrosis with slight involvement of the C5 root and L4-L5 discopathy, while she currently presents cervical and lumbar degenerative discopathy without current radiculopathy in the 2018 control ENG (MMSS). In addition, they conclude on Thursdays, «there is no a relevant difference, in order to justify the extinction of the degree, between a limitation for ‘major efforts’ and for ‘great efforts’ since they could well be, for the purposes that concern us, synonymous terms».

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For all these reasons, the Superior Court of Justice of Extremadura is clear: there has been no improvement that justifies reviewing the grade of the plaintiff. For this reason, it revokes the judgment appealed against and maintains the worker in a situation of Total Permanent Disability recognized at the time, with the right to collect the monthly pension of 600 euros, plus the arrears generated since August 13, 2020, the date on which the INSS took away his pension.


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