According to the General Social Security Law, any bodily injury that occurs as a result of work can be considered a work accident. Despite this definition, on many occasions the mutual insurance company considers that the worsening of previous ailments cannot fall into that category. To resolve all the doubts generated around this issue, labor lawyer Ignacio de la Calzada has made use of labor law.
A problem that arises quite often among its clients is the denial of the category of work accident by the mutual insurance company, alleging that it was an injury prior to entering the workplace. However, as the lawyer recalls, this resolution could result in the denial “of a right that corresponds to you.” Therefore, It is important to know how to file a claim.
To better understand this issue, the lawyer gives the example of a hernia or knee injury caused years before starting to work at the company. However, after some effort, it may end up reappearing or causing pain that prevents work activity as usual. Due to this, many workers decide to go to the mutual insurance company to recognize the work accident.
If the injury is aggravated by the work performed, it can be considered a work accident.
In these cases, it is quite common for the mutual insurance company to assure that “this is already degenerative, you already had it before and go to your family doctor.” However, this could be incompatible with the provisions of Article 156 of the Consolidated Text of the General Law of Social Securityin which the concept of work accident is defined. Specifically, with the content present in the second section F.
In this article, those “illnesses or defects previously suffered by the workerwhich are aggravated as a consequence of the injury constituting the accident.” As long as said aggravation occurs due to or as a consequence of the work activity carried out in the company and not due to a force majeure foreign to it.
The mutual insurance company must manage medical assistance
“In short, even if you already had it before, If it worsens at work, it is still a work accident“says the lawyer. Due to this, the obligation falls on the mutual insurance company to collaborate with Social Security to manage health care, carry out medical monitoring of the worker and offer financial benefits derived from the professional contingency.
“Furthermore, if the injury appears during the time and place of work, there is a presumption of employment“explains Ignacio de la Calzada. This legal principle establishes that, in order for the mutual insurance company or the company to be able to disassociate themselves from the employee’s injury or mishap, they must absolutely prove that it has no relationship with the work activity carried out in it. That is, “that everything that happens to you at work is the fault of the work, as a general rule.”
How to complain about the mutual insurance company’s decision?
For all these reasons, in the event that the mutual insurance company refuses to consider the worsening of the previous injury as a work accident, the worker has the right to complain about this decision. For this, it is essential that the employee leaves “a record of what happened”explains the lawyer, and to keep the mutual assistance report, since it will be necessary to have evidence to present a claim.
Secondly, it is important to go to the public health service and request medical assistance or, directly, sick leave, if necessary. “And third, and most importantly, requests Social Security to determine the contingency so that it can be decided whether your process, your medical leave, results from a work accident or a common illness,” advises the lawyer.
The person in charge of determining this issue is the National Social Security Institute (INSS) and the parties involved will have a period of 4 business days, which cannot be extended, to present the background information related to the case. Subsequently, The worker will have 10 days to present the documents and medical reports confirming your situation. The resolution will arrive within 15 days and, if it is unfavorable, the employee may file a claim within a period of 30 days.
“If it is recognized as a work accident, They can change your benefits and also who should assume health care“, Ignacio de la Calzada concludes by explaining. In the event that it is determined as the responsibility of the company, the mutual insurance company will be in charge of managing these issues. Therefore, as the labor lawyer recalls, having an injury or illness prior to the job does not mean that the employee loses his or her rights to be properly treated in the event of an aggravation.