A woman with grade III fibromyalgia is declared permanently disabled due to an accident at work.

woman absolute permanent incapacity

A 45-year-old woman with high-grade fibromyalgia (III), among other syndromes, is declared permanently disabled due to an accident at work, declared by Santander Social Court No. 4.

The events occurred in July 2017 when the woman was returning from her work at the Marqués de Valdecilla hospital and suffered a traffic accident, estimated by the magistrate Óscar Ferrer Cortines

The woman was declared permanently totally disabled due to common illness by the National Social Security Institute (INSS) in January 2021 on the basis of her usual profession as a nurse, but the woman claimed absolute disability as she is unable to carry out any activity.

The claim was rejected by the INSS and finally the woman filed a lawsuit requesting that her situation be declared as an absolute permanent disability and that the illnesses she suffers be recognised as having been caused by an accident at work.

The INSS and the Mutua Montañesa argued that the claimant's pathologies did not justify the absolute degree of incapacity, as she can perform light work, and argued that it was not related to the traffic accident she suffered on her way home from work.

In the event that the claimant is deemed to be suffering from absolute permanent incapacity, the regulatory base would amount to 2,358.44 euros.

2,873.44 per month if the contingency is considered to be common, and to 2,873.44 euros (for total and absolute) if the contingency is considered to be derived from an accident at work.

In the latter case (accident at work) the benefit would be paid by the Mutua Montañesa.

The head of Social Court number 4 has fully upheld the claim and sentenced Mutua Montañesa to pay a monthly pension of 100% of the regulatory base of €2,873.44, with effect from 18 January 2021.

The judgment is dated 6 May. It is Social Security procedure 452/2021.

Residual working capacity

In his reasoning, the magistrate states that the claim for the absolute degree of incapacity should be upheld given the pathologies from which the woman suffers: fibromyalgia at a high degree (III); chronic fatigue, also at degree III; a multiple chemical sensitivity disorder that causes her to tolerate medication poorly, and an adaptive disorder with signs of anxiety and depression.

In this sense, he recalls that "anyone who is unable to carry out a professional activity with a minimum of performance and efficiency, or with a minimum of professionalism, must be classified as permanently and totally incapacitated", in reference to the case law of the Supreme Court.

The accident and the woman's illnesses are clinically linked

The magistrate also considers that, according to the evidence, "we are convinced that the contingency for permanent incapacity must be that of an accident at work".

According to them, "the traffic accident may be a trigger for the illnesses that the woman suffers from", as explained by a specialised expert at the hearing, who explained that the woman's pathologies fall into the field of neurological illnesses of central sensitivity.

The expert stated that there are many causes that can predispose a patient to suffer a sensitisation process, including trauma, and that, in his experience, he has had many cases of people who have developed the aforementioned diseases as a result of a traffic accident.

For this reason, the magistrate considers that the accident suffered by the applicant in 2017 "cannot be classified as inconsequential" and emphasises that "there is a clinical link between the accident and the diseases".

This is evident from the medical documentation, which shows that the applicant's illnesses arose as a result of the accident, with a progressive onset of symptoms.

Prior to the accident, the woman had no medical history of disability.

"In short, the temporal connection between the traffic accident and the emergence of the plaintiff's illnesses is unquestionable, hence the scientific line that places traumatic events as one of the triggers is the most likely hypothesis in this case," concludes the magistrate.

Source: confilegal.com

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