Written by Albert Perez
Employment Law Adviser
Absolute permanent disability due to silicosis
We analyse the ruling of the Supreme Court, Fourth Chamber (Social Division), ruling of 24 February 2009, Appeal No. 44/2008
in which the Court grants absolute permanent disability arising from silicosis.
In addition to declaring the absolute permanent disability of a miner who has contracted silicosis, this ruling is of particular interest because the worker in question had already retired, and the Court sets out the criteria for determining the regulatory salary to be used as the basis for the various calculations (compensation, pension, etc.) to which the employee is entitled — fixing that salary by reference to the rate established in the applicable collective bargaining agreement and, where that rate is unclear, by reference to what another employee in the same role is actually earning.
The Court states as follows:
"In order to resolve the issue raised, it is appropriate to start from our ruling of 20 December 1972, issued in the interest of the law, which established that the date of diagnosis of the occupational illness of silicosis — even where the person affected is no longer in active employment due to retirement or any other reason — is the point in time that determines the calculation of the pension amount, in accordance with the wages being earned at that time by workers who are still in active employment in the same grade and under the same conditions as the person declared disabled. This doctrine requires that the regulatory salary be fixed by reference to what the person concerned would actually have earned had they remained in active employment in the same profession up to the date on which the illness was diagnosed. This gives rise to a number of difficulties, since the calculation is hypothetical in nature and it is therefore hard to determine the actual salary the disabled person would have received had they continued working. Our ruling of 31 January 1992 (Appeal No. 441/91) and the other rulings cited above established the criterion of a standardised or sector-average salary for cases where the company has ceased to exist or where no evidence has been produced as to what the salary would have been. However, this approach is not applicable where the company still exists, continues to operate, and has its own collective bargaining agreement in force. In such cases, the remuneration set out in the collective bargaining agreement for the disabled person's occupational grade must be applied. Yet, since variable salary supplements tied to productivity levels and attendance exist, it would be difficult to establish in each individual case what the person concerned would have been entitled to, since it would only be possible to estimate hypothetically how many days they would have worked, what their productivity would have been, and what the fixed and variable supplements set out in the Hunosa collective bargaining agreement for the years 2002 to 2006 — published in the B.O.P.A. of 9 July 2002, Article 28 — would have amounted to, particularly given that base salary and fixed supplement are ultimately determined by output levels. Therefore, the collective bargaining agreement provisions should be applied where they clearly establish the remuneration; but where that remuneration is hypothetical because it depends on higher output or other variable factors, the best approach is to use the average earnings of workers in the same grade at the same company during the preceding year, as that average will most closely reflect the actual salary the disabled person would have received had they remained in active employment — which is precisely the objective sought."
TOTAL PERMANENT DISABILITY DUE TO SILICOSIS:
The Supreme Court, Fourth Chamber (Social Division), ruling of 4 Feb. 2015, Case No. 202/2014, also issued this ruling concerning a quarry employee at risk of silicosis who contracted the disease and was granted total permanent disability.
severe disability DUE TO SILICOSIS:
In this ruling of the Supreme Court, Fourth Chamber (Social Division), ruling of 22 Dec. 2003, Case No. 4662/2002, severe disability — which is not easily granted — was awarded in a case where an individual's symptoms had significantly worsened and, years later, they claimed severe disability.
Disability cases
In cases of disability due to silicosis, it is essential to consider several aspects relating to the rights and benefits of the affected employee. These include extra payments, which must be taken into account when calculating any compensation or retirement pension to which the employee may be entitled. It is also important that the minimum Social Security contribution bases and the relevant activities are clearly established and reflected in the corresponding schedule.
temporary disability (IT) caused by silicosis as a result of work carried out may give rise to a declaration of occupational disability. To determine the degree of disability, the employee's usual occupation will be assessed, and the compensation framework established by Social Security will be taken into consideration.
In the event of permanent disability, whether partial or total, the calculation of the permanent disability pension will be based on the applicable regulatory base. The declared degree of permanent disability will determine the percentage of the base on which the pension is calculated.
Silicosis, contracted as a result of working in activities involving exposure to silica dust, can have a significant impact on the professional and personal life of an employee. It is therefore essential to have access to the protections and benefits that Social Security provides through disability benefits.
Damages for silicosis
- In addition to disability benefits, an employee affected by silicosis may also claim damages for the losses suffered as a result of the occupational illness they have contracted.
- You may also claim a surcharge on benefits for failure to comply with occupational health and safety regulations.
Consult our specialist work accident lawyers here
