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Fund.3 period of contributions - Case Tarazona Valverde - Exp . 04762-2007-PA/TC No. - Fund. 26 - Principle of prevalence

EXP. No.

04762-2007-PA/TC SANTA


ALEJANDRO VALVERDE TARAZONA

JUDGEMENT OF THE CONSTITUTIONAL COURT


In Lima, at 22 days of September 2008, the Constitutional Court in plenary session court, with the assistance of judges Mesia Ramirez Vergara Gotelli, Landa Arroyo, Beaumont Callirgos, Calle Hayen, Eto Cruz and Alvarez Miranda, made the following statement

SUBJECT
constitutional tort
Appeal lodged by Mr. Alejandro Valverde Tarazona against the decision of the Second Civil Chamber of the Court Superior Court of Santa, on pages 126, the date July 12, 2007, declaring unfounded claim here.

BACKGROUND On July 7, 2006 the plaintiff brought claim for protection against the Office (ONP), requesting that it declare inapplicable 0000040058-2005-ONP/DC/DL Resolution No. 19990, dated May 10, 2005, and that therefore be granted pension pursuant to Article 47. of Decree Law No. 19990, with the payment of pensions accrued and statutory interest.


The demand answers located on the grounds that the applicant does not meet the requirements of Article 47., Decree Law No. 19990 to be eligible for a pension from the special pension scheme because they were not born before July 1, 1931.


Fifth Special Civil Court of Chimbote, dated March 5, 2007, hereby demand based in part on the grounds that the applicant demonstrate that they have complied with the requirements Article 44., Decree Law No. 19990 to access an early retirement pension.

The appeal, quashing the appeal, declared unfounded claim, holding that the plaintiff intends to prove his years of contributions with a certificate of employment who are not eligible for recognition of years of contributions under Article 54. Of Supreme Decree N. º 011-74-TR. BASICS



1. § Source of demand and delimitation of the request


1. On the basis 37 of the 1417-2005 STC-PA, published in the official gazette El Peruano on July 12, 2005, this Court has stated that part of the content directly essential to the fundamental right protected by the pension laws that establish the requirements for their production, and ownership of the right claimed must be sufficiently established to make it possible to issue a finding of merit.


2. The plaintiff claims that the resolution in question violates their fundamental right to a pension, because it does not recognize their contributions made after August 21, 1964 until May 22, 1992, by Electro Ceramics Chimbote, so he requests to be recognize the contribution period and be granted pension pursuant to Article 47., Decree Law No. 19990. Consequently, his claim is included in the case provided the foundation 37.b) of that sentence, why should analyze the merits of the issue.


3. For its part, the ONP submits that there is a physical impossibility to prove all contributions made after August 21, 1964 until May 22, 1992, by Electro Ceramics Chimbote, because the revision of its forms is only able to observe and recognize the contributions from 1971 to 1974, one week in 1979, and several weeks between 1985 and 1992.


4. Delimited in this way the terms of debate, the Constitutional Court, given the increasing recurrence of this issue, consider should review its jurisprudence on the evidence that can prove periods of contributions that are considered by the NPO as years of contributions are not accredited, saying that they have not been conclusively proven or that there is physically impossible to accredit.


This is because a large number of processes that are designed under the guidance of the fundamental right to a pension, the dispute centers on whether the applicant has the period of contributions required by law to access to pensions requested, which always involves the need to assess the adequacy, probity and effectiveness of the evidence submitted by the parties to determine whether or not the applicant is complying with the years of contributions, because the fundamental right to a pension is a legal configuration.


5. Also, please note that the fundamental right to a pension has the nature of social law, and as such requires public authorities required to provide adequate benefits for the purpose of addressing the basic needs and living of pensioners to enable them to achieve and adequately meet the exercise of the right to a dignified life.


To this end, the following topics: a.


The proof in the absence of constitutional and evidentiary stage
B.
Who is responsible for withholding and payment of contribution? C.

How do you test for contribution periods? D.

Rules for testing periods of contributions


2. § The test in constitutional processes


6. The test in constitutional processes, as in any other kind of process or procedure, aims to establish or determine the existence or nonexistence of relevant facts or litigation that are relevant to the decision. The test should be oriented towards the search for decisions to be fair, should be based on a true determination of the facts asserted by the parties in the process, which, after the acts postulatorios (demand response), is controversial and relevant to the decision.


7. Thus, in the constitutional process has the function test to prove or establish that the threatened violation alleged by the plaintiff is certain and imminent implementation, or that the alleged infringement of fundamental rights has been produced in a real and effective, or that has become irreparable. This


order that the judge in sentencing, as estimated, may order the reinstatement of the previous state of things, or provide that the notice does not re-engage in the acts or omissions that led to the filing of the complaint, and when rejected, may condemn the plaintiff to pay costs and expenses in the event that action was manifestly frivolous.


8. In this sense it is the parties should provide the facts to the process. This means that the parties, slip and distributes the burden of proving the facts in the process. Thus the plaintiff has the burden of proving the facts asserted to support its claim, while the defendant has the burden of proving the facts and contradicting claims.


2.1 § The absence of evidence-gathering stage in constitutional processes


9. According to Article 9. º Constitutional Procedural Code (CPConst.), in constitutional processes no evidentiary stage. Only from the evidence that no action is required, which does not preclude the conduct of evidentiary proceedings that the judge deems necessary, without affecting the duration of the process.


10. The absence of evidence-gathering stage in the process of protection is derived from the purpose and object of the process because it did not elucidate the ownership of a right, as in others, but only resets the exercise to a manifestly arbitrary involvement or unreasonable. Therefore, in order to be able to issue a ruling on the merits, we must not only not be in discussion of ownership of the constitutional right that is allegedly infringed, but even one who claims to have been affected in the exercise of proving the existence of the act in question. This means that ownership of the right whose violation or threatened violation is alleged to be certain and indubitable, and not disputed or doubtful.


11. Hence, the protection is a process in which the judge has, in essence, to act evidence, but only to judge the legitimacy or illegitimacy of the act constitutional reputed as harmful, since, as a way of urgent protection, this process requires fast, easy and effective. Therefore, the process is under the performance test immediate, instantaneous and self-attached when demand or answered.


12. That is why, in need of protection can not be elucidated claims which are designed to return a fundamental right whose ownership is uncertain or disputed, or that are based on contradictory facts, or controversial, or requiring the administration of evidence complex. However, this does not prevent the Court may request the performance of complex evidentiary proceedings when deemed necessary and essential for determining the constitutional legitimacy or illegitimacy reputed injurious act.


3. § Responsibility for the withholding and payment of
contributions

13. Regarding the responsibility for the withholding and payment of contribution, it should be noted that Decree Law No. 19990 on the premise that the employer acts as a withholding agent, that is, as it is appropriate to retain the contribution made the worker and deliver it to the competent authority. Therefore, Article 11., Decree Law No. 19990 provides that:


Employers and socially owned enterprises, cooperatives or the like, are required to withhold employee contributions required in the pawnshop secured payment and surrender their salaries to Social Security in Peru, together with such employers or companies must pay for the term set by the Regulation, within one month following the date on which the job quickly. If the liable persons the opportunity retuvieren not indicated the contributions of its employees, liable for payment, without the right to deduct these.


14. Should also be noted that Decree Law No. 19990 contribution considered as periods of days, months and weeks that provide or have provided services for workers, even if the employer had not paid contributions to the management body, to have it withholding agent status. Thus, in the original wording of the first paragraph of article 70. No provided that:


compulsory insurance for periods of contribution are the months, weeks or days to pay, or have provided services that create the obligation to pay the contributions referred to in Articles 7 to 13, even if the employer or the socially owned enterprise, cooperative or similar, would not have made the payment of contributions (emphasis added).


However, the original wording of the first paragraph of Article 70., Decree Law No. 19990 was amended by the Fourth Transitory and Final Provision of Law No. 28991, eliminating the phrase "even if the employer or company socially owned, cooperative or similar, would not have made the payment of contributions "to read as follows:


compulsory insurance for periods of contribution are the months, weeks or days to pay, or have served that create the obligation to pay the contributions referred to in Articles 7 to 13.


15. However, taking into account the new wording in first paragraph of Article 70., Decree Law No. 19990 is imposed whether the modification in question has been deleted irrebuttable presumption that it is considered effective contributions to the retention of the contribution made by the employer a worker's compensation is not paid to the managing entity. To resolve this issue note the position of the worker, the employer and manager in labor relations, social security withholding and payment of contributions to the National Pension System.


16. Regard, the Court considers that the amendment of Article 70., Decree Law No. 19990 does not affect the liability of employers for withholding and payment of contributions to the national pension system, because although the new wording has been deleted the phrase "even if the employer or the socially owned enterprise, cooperative or similar, had not made payment of contributions, this does not imply that the retained and unpaid contributions are treated as contributions not made, on the contrary, the contributions withheld and not paid by employers should be regarded as actual contributions, for the modification in question has no bearing quality employers and withholding agents of employee contributions.


17. It should be borne in mind that in terms of retention and payment of contributions to the National Pension System, the employee occupies a position of disadvantage, although he made the contribution, the employer who retains and actually paid before the managing body, ie is solely responsible for entering that contributions to the pension fund. For its part, the employer, to act as withholding agent, takes an advantage with respect to employees by fall in their actions the possibility that contributions be made effectively, since it can retain the worker's compensation but not to pay to the managing body, because the employee insured as required, plays the role of inaction and, therefore, is released from liability for the deposit of contributions to the management agency. This also means that the managing body against the employer maintains a position of advantage, as it may impose a fine for non-payment de aportaciones retenidas o exigirle mediante los procedimientos legales el cobro de las aportaciones retenidas.


18. Por lo tanto, los asegurados obligatorios del Sistema Nacional de Pensiones nunca se encuentran en la posibilidad efectiva de realizar directamente el pago de sus aportaciones a la entidad gestora, razón por la cual las aportaciones retenidas pero no pagadas al Sistema Nacional de Pensiones serán consideradas para determinar el total de años de aportaciones, pues su pago es responsabilidad exclusiva del empleador.


19. Ello quiere decir que el incumplimiento de la obligación de abonar las aportaciones por el empleador no puede perjudicar al trabajador, ya que si existe incumplimiento en este aspecto, ONP or competent institution must use the collection procedures and penalties provided by law to charge the employer contributions withheld and not paid. Consequently, in all cases had been adequately tested the employment relationship, should match the period of work as the period of effective contributions to national pension system.


20. Also bear in mind that from the date of enactment of Law No. 27334 and Supreme Decree No. 039-2001-EF non-payment of contributions is a problem of labor between the tax- collecting agency of the ONP-now, the Superintendencia Nacional de Administración Tax-and the same employer.

And, as noted by the Ombudsman, the lack of verification of the cash contribution is a tax problem between the employer and SUNAT, oblivious to the worker, the collecting entity having its own tools to enforce their collection [1].

4. § Proof of periods of contributions to constitutional jurisprudence

21. In this regard, the criteria set by the Constitutional Court was to consider employment certificates submitted in original, certified copy or single copy, as evidence sufficient to prove suitable and periods of contributions that have been considered by the ONP such contributions are not credited.


This because, after a joint reading of articles 11. No. 70., Decree Law No. 19990 the Court concluded that, in the case of compulsory insurance, months weeks or days to pay, or have provided services that create the obligation to pay benefits are considered as periods of actual contributions, although the employer had not made the payment of contributions, because it is obligated to retain workers . Moreover, this argument has been strengthened with the appointment. Article 13 of Decree Law No. 19990, which states that the ONP is required to initiate the procedure coercive if the employer fails to make payment of the aforementioned contributions.


This line of jurisprudence has been consistently and uniformly by this Court is reaffirming, after the amendment of Article 70., Decree Law No. 19990, as has been based on the previous basis.


22. However, it should be noted that from this jurisprudential approach during the development processes in pensionary under this Court has been detected, among other cases, in which they have submitted false documents to prove years of contributions are not recognized by ONP.


Thus, in the STC 09560-2006-PA/TC the Constitutional Court rejected the request by Mr. Roger Aguinaldo Vera head against the ONP and ordered to send a copy of the statement and relevant to the Attorney General acted because the data entered in one of the certificates submitted by the plaintiff were untrue. In this regard it was noted that:


On the first certificate of employment, it should be noted that the data contained in can not be true, as the notary in question was dismissed by the Notarial Council Resolution No. 005 - 93-JUS/CN, dated July 20, 1993. Therefore, the applicant could not work in the notary referred to the July 30, 1995, because Don Daniel Alejandro Céspedes Marin was removed from office of notary in the year 1993.


23. On the other hand, we also note that during the development of processes under in pensionary, the Court was able to detect other cases in which the plaintiff, to establish periods of contribution, presented certificates of work that have been issued by third parties or labor certifications that are contradictory in content.


4332-2005-PA/TC In the STC, the Court declare the petition for habeas corpus filed by Mr. Heraclio Barranzuela Cienfuegos against ONP, because the work presented certificates to prove that 20 years had contribution to access a pension, had been issued by third parties and were contradictory. In this sense, to dismiss the lawsuit stated: (...)


warns at page 65 of the booklet made before this Tribunal, a work certificate signed by Manuel Rangel Castro, claiming to be former employee of the office Yapatera the former hacienda, it was owned by Mrs. Josephine McDonald Czech widow, a certificate stating that the appellant worked for the said estate from 1950 to 1971, but also on the record, at page 6, another work certificate signed by Miguel Torres Carrasco - annexed by the appellant along with this demand - which is dated May 2004, who also claims to be a former employee (general pointer) of the former hacienda Yapatera Agricultural Company SA and that it was owned by Mrs. Joseph Mc Donald Czech. According to this certificate, the appellant worked for the said estate from 1953 until December 30, 1957. With these documents the applicant seeks to demonstrate that it meets the 20 years of contributions needed to get her pension, however, to be signed by parties other than his former employer could not be taken as evidence to prove their employment relationship . Moreover, we see a contradiction between them: while the document stated in page 6 states that the appellant worked from 1953 until December 1957 in the said property, the document stated in page 65 of the booklet made before this Court, contends that he did since 1950 to 1971. That is, not only its validity is in question but also its accuracy, making it impossible to establish with them or the employment relationship or the time actually worked to determine the years of contributions which would have been unknown to the plaintiff (...) .


24. Finally, it should be noted that during the development processes in pensionary under this Court has also been detect cases in which the applicant seeks the recognition of years of contributions without presenting any evidence indicating that clears.


Thus, in the STC 10465-2006-PA/TC, the Court declare the petition for habeas corpus filed by Mr. Edilberto Dueñas Coronado against ONP. In this case, the applicant requested to be granted a total of 33 contributions, instead of the 27 years of contributions that had recognized the ONP. In discussing the dispute, the Court dismissed the application because:


(...) to establish those years of contributions, the plaintiff ha [d] attached was no evidence (certificates work payslips, payment of service time, a summary of contributions, among others).


Likewise, in the STC 00273-2006-PA/TC, the Court declare the petition for habeas corpus filed by Mr. Bernardo Isaac Leudo Ku against ONP. In this case, the dispute focused on whether the applicant met the 20 years of contributions required by Article 1., Decree Law No. 25967 to access a pension. In discussing the controversy, dismissed the claim because of the joint assessment of the evidence on the record, it concluded that: (...)


can not be verified whether or not the appellant has demonstrated its rights in respect of contributions for those years since it has not filed papers with at least test the working relationship with different employers during that time.


25. Therefore, bearing in mind that the approach outlined has been used improperly by the applicants, the Constitutional Court, in exercising its functions of management and peacekeeping, and making use of the power conferred by Article VII of the Preliminary Title of the Code of Constitutional deems it set a precedent that was binding on the rules to be observed by judges who know amparo process accreditation periods of contributions considered not accredited by the ONP.


note that these particular rules to be followed by the judges hearing protection processes to determine when an applicant has demonstrated convincingly periods of contributions, has its reason for being not only by the absence of evidence in the station process protection, but also because the approach has been used maliciously referred to by the plaintiffs.


5. § Rules for periods of contributions credited in the process under


26. Thus, when the processes under the elucidation of the controversy involves the recognition of periods contributions, which have not been considered by the NAO, so that the demand is granted, the judges and the parties must take into account the following rules: a.


The plaintiff in order to generate enough conviction to judge the reasonableness of her request may attach to its application and test instrument, the following documents: certificate of employment, report wages paid, the books of payrolls, time settlement services or benefits, the records of contributions Orcinea the IPSS or EsSalud, among other documents. These instruments can be submitted in original or certified copy fedateada, but not in single copy. The Judge, own initiative or at the request of the applicant may request the administrative record to the ONP or copy it fedateada under responsibility.


b. ONP, when answering the request for defense, the caseload has attached as evidence of the administrative record of granting a pension or fedateada copy of it. This in order to determine with certainty whether the refusal to grant or the lack of a longer period of contributions has been arbitrary or is justified. And, if you are questioning the alleged violation of right to a pension, it is that the judicial authorities have in view the same act or, at least, the documents submitted to the administrative authority, and those in which the authority based its decision, to determine whether there was or not the alleged violation.


c. The caseload of the administrative record include the granting of a pension or fedateada copy thereof, is applicable to the process under underway when the judges deem it necessary and indispensable to resolve the dispute.


d. In amparo proceedings are initiated after the publication of this ruling, the ONP, when answering the demand, has the duty to comply with the administrative record file for granting pension or fedateada copy of it. If fails of its caseload to attach as evidence the administrative record, the court will apply the principle of prevalence of the complaining party, if the evidence submitted by the applicant are sufficient, relevant and appropriate to establish years of contributions, or additionally apply Article 282. of the Code of Civil Procedure. E.


Not require judges to apply the administrative record of granting a pension or fedateada copy of it, when we are faced with a claim manifestly unfounded. For these purposes is treated as a claim clearly established, one in which it notes that the period has not recognized ONP contributions that have been accredited by the plaintiff convincingly arguing that they have lost their validity, that the applicant has had the double condition of insurers and employers, and according to the Reference Table Start Contributions by Zones, established by the former Institute Peruvian Social Security in the area have not yet started trading.


f. Not require judges to apply the administrative record of granting a pension or fedateada copy of it, when we are faced with a claim manifestly unfounded. For these purposes, is regarded as a manifestly unfounded claim, one in which you note that the applicant is applying for recognition of years of contributions and has failed to present evidence to support his claim, when combined assessment of the types of evidence leads to the conviction that demonstrate that the minimum years of contributions for access to a retirement pension, or when presented certificates of employment that have not been issued by former employers, but by third parties.


6. § Analysis of the dispute


27. Articles 47. º and 48., Decree Law No. 19990, in force before the promulgation of Decree Law No. 25967, are the laws that shape the constitutionally protected right to access to pensions claimed. They provide pension entitled to special pension scheme for men who: a) have 60 years if born before July 1, 1931, b) have been enrolled in the Pension Funds of the Caisse Nationale Social Security or Employee Social Security, and c) demonstrating, at least five years of contributions, provided they are insured or required, having been, then opt for the optional.


28. In this case, according to the National Identity Document obrante at page 36, the actor was born on November 25, 1949, ie after the date specified in Article 47., Decree Law No. 19990 to be eligible to purchase a retirement pension under the special regime, so that the pension scheme is not applicable.


29. However, this school believes that attention to the content of the resolution in question, should the principle jura novit curia, enshrined in Article VIII of the Code of the Constitution. Consequently, in this case the legal right to own the applicant's pension will be analyzed as required by the rules governing early retirement scheme established by Decree Law No. 19990, as well as amended.


30. According to Article 44., Decree Law No. 19990, to be entitled to early retirement pension is required to have, in the case of men, at least 55 years of age and 30 full years of contributions.


31. Resolution No. 19990 and in Table 0000053395-2006-ONP/DC/DL Summary of contributions which are contained on pages 2 and 7, we see that the ONP was denied the plaintiff's early retirement pension because he considered that: a) had accredited only 17 years and 5 months of contributions, and b) there was the physical impossibility of proving the age of 22 and 10 months of contributions made from 1965 to 1970, from 1975 to 1978 and from 1980 to 1984 and missing periods 1964, 1971, 1973, 1974, 1979, from 1985 to 1992 and from 1994 to 1996.


32. To prove the ownership of pension entitlement and compliance with legal requirements that make it up, the applicant has attached to its demands two certificates of employment procedure on pages 9 and 14, and two assessments of benefits procedure on pages 10 and 11 , which show that has worked for Electro Ceramics Chimbote SA since August 21, 1964 until May 22, 1992. Consequently, in application of Articles 11. No. 70., Decree Law No. 19990, that period shall be counted as a period of contributions for the purpose of giving retirement pension, even if the employer had not made the payment of necessary contributions, since the defendant must make the collection of contributions indicated in accordance with the powers granted by law, making use of constraints that are necessary for that purpose.


33. Therefore, taking into account the documentation referred to, the actor credited 21 years and 4 months of contributions to national pension system, which added to the 17 years and 5 months of contributions recognized by the defendant, a total of 38 years and 9 months of contributions. Also, with National Identity Document obrante at page 36, certifying that the applicant was born on November 25 1949, and who turned 55 on November 25, 2004.


34. Thus, the applicant meets all legal requirements for the perception of early retirement pension and, consequently, it has ignored the constitutional right arbitrarily to the board that it has, so the defendant must pay the accrued pension accordance with Article 81., Decree Law 19990, for which it must take into account the date of opening of Record No. 00900037205, which consists of the pension application rejected.


35. Additionally, you must order the site that make the calculation of accrued since the date of the constitutional tort and the legal interests generated according to the rate specified in Article 1246. of the Civil Code, and to proceed with your payment in the manner prescribed by Law No. 28798.


36. Having established that the site has violated the constitutional right to a pension, corresponds, in accordance with Article 56. No Constitutional Procedural Code, order the entity to bear the court costs, which must be settled in the implementation phase of above.


For these reasons, the Constitutional Court with the authority under the Constitution Peru's political



RESOLVED 1. Upheld the claim, and consequently null and void Resolution Nos. 19990 and 0000053395-2006-ONP/DC/DL 0000040058-2005-ONP/DC/DL 19990.

2. Order that meets summoned to give the appellant an early retirement pension under Article 44., Decree Law No. 19990, and to pay the accrued pension and statutory interest and court costs in the stage of execution of the sentence.

3. Declares that the criteria in the foundation 26, above, are immediately binding precedent under Article VII of the Preliminary Title CPConst. Published and notifíquese

.

SS. MESSIAH

RAMÍREZ
VERGARA Gotelli

LANDA ARROYO STREET BEAUMONT Callirgos
Hayen
ETO
CRUZ ALVAREZ MIRANDA

Pain In Right Arm With Rash On Arm

Implementation of the primacy of reality - Case Vera Castro - Exp N ° 06000-2009-PA-TC

EXP. No.

06000-2009-PA/TC

MARCOS LIMA VERA CASTRO


JUDGEMENT OF THE CONSTITUTIONAL COURT


In Lima, the 21 th day of September 2010, the Second Chamber of the Constitutional Court, composed by Mesia Magistrates Ramírez, Hayen and Eto Cross Street, made the following statement

SUBJECT

Appeal lodged a constitutional tort by Don Marcos Vera Castro against the decision issued by the Fourth Civil Division of the Superior Court of Lima, 103 pages, date July 15, 2009, which dismissed the demand for cars.



BACKGROUND On February 20, 2009, Don Marcos Vera Castro demand brought against the company under DOE RUN PERU SRL - Cobriza Division, in order to replace it in your workplace, and that it included in the payroll of the mining company. Further requests to cease the violation of their fundamental rights to work and to protection against arbitrary dismissal.

Prime Constitutional Court of Lima, on 25 February 2009, dismissed the claim, finding that its elucidation requires the action of several forms of evidence, it is not possible in the process of protection, because it lacks probative station, so that the constitutional process is not suitable for defense of the right allegedly violated.

reviewing The Board upheld the appeal on similar grounds. BASICS



1. According to the criteria procedurability of demands relating to employment under private individual, set in the grounds 7 to 20 STC No. 0206-2005-PA/TC, which constitute binding precedent, the Court considers that, this case, it is appropriate carry out checks on arbitrary dismissal.

2. The plaintiff argues that under the principle of the primacy of reality, the relationship he had with the defendant was a labor-related, and therefore could not be dismissed but for just cause. He claims that he worked for Empresa Minera del Peru SA Centre (Centromin PERU SA) from 1983 to 1997, and subsequently, when that company was acquired by DOE RUN PERU SRL, worked in the Division Cobriza, highlighted by various labor intermediation between those that have SEMELEC SA (01/01/1998 to 10/01/1999), M & JAKELL'S SAC (11/01/1999 to 31/08/2005), UNION PERU SAC (01/09/2005 to 31/10/2006), TEI PATRUVI SERVICE SRL (01/11/2006 to 30/04/2008) G & N ROJAS SA (01 / 05/2008 to 30/12/2008).

3. In this sense, the dispute centers on whether, under the principle of the primacy of reality, the appellant's employment can be considered as a contract of indefinite duration, and attention to it, determine whether the applicant only could be fired for cause relating to your conduct or work capacity.


4. With regard to the principle of the primacy of reality, which is implicit in our ordenamiento jurídico y, concretamente, impuesto por la propia naturaleza tuitiva de nuestra Constitución, este Colegiado ha precisado que en mérito de este principio “(...) en caso de discordancia entre lo que ocurre en la práctica y lo que fluye de los documentos, debe darse preferencia a lo primero, es decir, a lo que sucede en el terreno de los hechos”. (Fundamento 3 de la STC N.° 1944-2002-AA/TC).

5. Mediante acta de infracción (desnaturalización de la intermediación laboral) a razón de las actuaciones inspectivas realizadas según Orden de Inspección N.º 0100-2007-DNIT, corriente a fojas 52 a 65, se resolvió incluir en la planilla de la empresa usuaria (DOE RUN PERU SRL) to 182 of the 240 workers highlighted by the brokerage firm PATRUVI TEI SERV. SCRL ADVISORS CONSULTANTS, safeguarding the right of the 58 remaining to enforce it in the proper channels, because there were no present in the route taken, not possible to determine accurate labor data in order to apply the principle of the primacy of reality.

6. In this sense DOE RUN PERU SRL ordered the addition to its payroll of 180 workers (2 workers less ordered due to a duplication of their names.) Subsequently made inspective other action arising from the Inspection Order No. 220-2008-DRTE-HVCA., Current a fojas 68 a 75, con el fin de verificar la situación de 14 trabajadores que se encontraban en la misma situación laboral que los trabajadores incluidos en planilla, toda vez que no fueron considerados porque no se encontraron en el momento de la inspección (debido a que se encontraban en sus días libres, descanso médico, vacaciones) o porque habiendo sido partícipes de la visita inspectiva, no habían sido incluidos.

7. Dicha inspección concluyó que los 14 trabajadores, dentro de los cuales se encuentra el demandante, deben ser incluidos en la planilla de la empresa usuaria, en mérito a que desarrollan actividades o labores de ejecución permanente y sin cuya ejecución se afectaría y/o interrumpiría operation and development of the undertaking, as set out in Law No. 27626, section 3, assumptions of source of labor mediation: "The job placement involving staff working in the workplace or client company's operations is appropriate only for compelling cases of temporary, complementarity and specialization. Workers within the client company can not provide services involving permanent implementation of the core business of the company, "and Article 11.2, which states:" The complementary service companies are those that emphasize his personal legal to third parties called users to develop activities ancillary or unrelated to the business thereof. "

8. In this sense, applying the principle of the primacy of reality, the relationship of appellant with DOE RUN PERU SRL was a labor and indeterminate nature, and any employer's decision to terminate it could only be sustained by a just cause established by duly established by law and otherwise arbitrary dismissal would be configured, as has happened in this case.

9. Finally, the school considers that the breach of this employment relationship set arbitrary dismissal, for which, taking into account the purpose of the process for recovery under constitutional, it must be the reinstatement of the plaintiff in the workplace coming mister to the date on which the violation occurred of their fundamental rights.

For these reasons, the Constitutional Court with the authority under the Constitution of Peru



RESOLVED 1. Upheld the request for defense for having established the infringement of the right to work.

2. ORDER meets the reset located at Don Marcos Vera Castro in the position he occupied or other similar incluyéndosele the payroll of the respondent and regarding it as a worker subject to an employment relationship indefinite period, with the payment of costs and process costs. Published and notifíquese

.

SS. MESSIAH



RAMIREZ STREET CROSS Hayen

ETO

How Much Is An Wood Carving Worth

Amparo is not an instance of the regular process more Exp. No. 02693-2010-PA-TC and Exp No. 03506-2008-PA-TC

EXP.

No. PUNO
02693-2010-PA/TC
ARTEMIO Mamani Mamani
RESOLUTION OF THE CONSTITUTIONAL COURT


Lima (Arequipa), 21 September 2010 SEEN



The constitutional tort action brought by Don Artemio Mamani Mamani against the decision of the Civil Chamber of the Superior Court of Justice Puno, on pages 113, date June 18, 2010, confirming the appeal states that inappropriate demand for cars, and SERVING



1. That on September 17, 2009, plaintiff brought the claim for protection against judges of the Third Peace Courts of Puno and the Second Puno Family Court, asking that it rescind the Judicial Resolution No. 9, dated June 11, 2009, rejecting his appeal pending, and the Resolution No. 3 dated July 22, 2009, by which it dismissed the petition in which he brought to the denial of its application appeal, and therefore restore the situation prior to the constitutional involvement, is ordered to be given by brought her appeal against the decision dated May 6, 2009. In his opinion, the court rulings challenged injured effective judicial protection and due process of law in their manifestations of defense and the right to appeal. Is

Dona Estela Cutipa Manzano, before the Third Court of Peace Counsel Puno, promoted against him, food processing No. 1470-2008, adding that a ruling dated May 6, 2009. your claim is upheld, that not finding according to law appealed, which was declared inadmissible because it did not follow the respective court fee, argues that the term established remedied and that despite this, arguing that there was no copy of its letter of correction, by court order No. 9, this was rejected, why we appealed that ruling in the complaint, appeal was also rejected by the questioned Resolution No. 3.

2. That on March 16, 2010, the Joint Court near Puno declared inadmissible the request for defense, arguing that constitutional judicial review body is not the ordinary courts. In turn, the Civil Chamber of the Superior Court of Justice of Puno confirms the appeal on the grounds that the shelter has not exhausted all means of challenge to the ordinary law provides, since the disputed Judicial Resolution No. 9 was challenged in a complaint.

3. That the above analysis on demand, as well as instrumental cars that run on notice that what the plaintiff seeks purity is that rescission of judicial decisions that are adverse, which were issued by regular judges in the context of civil proceedings of food (food collection), arguing that it violated due process, specifically their rights to counsel and the right to appeal, since applying the warning was declared not filed his appeal sentencing.

4. That as pointed out repeatedly in the jurisprudence of this Court: "(...) the process of amparo is a constitutional process independent and can not be taken as a process which can be moved for discussion and resolution, an issue already resolved in the ordinary process. The constitutional control of a judicial decision through the protection does not mean that this is one more instance of the regular process, but rather, that control is with a constitutional canon eigenvalue "(JCC 03506-2008-PA/TC, FJ 3).

5. That is why this school considers that the application must be dismissed, since it means the shelter is intended that the constitutional court make formal statement on legal situations unrelated to the threat or violation of fundamental rights, such as requirements to be met by the defendant for bringing impugnatorios resources the law provides, or as to the Annexes to be raise these resources, a matter that clearly falls outside the protection through a security process except that judicial decisions and the effects of these cross the margins of reasonableness and proportionality that any determination must be respected, thus affecting so manifest and serious any fundamental right, which has not happened in this case.

Indeed, the record together we see that remedied the omission to seek the remedy of appeal ruling to the rate of judicial (F. 81 of the record together), the protection failed this time presented many copies of the application for relief as parties in the process, which is why, through Resolution No. 8 is ordered within a day, present these and official notice to the parties, failing which have not submitted the letter (f. 82 of the record together), being that, once the new term relief and are ordered using the warning has not filed its application, by Judicial Resolution No. 9 (f. 83 of the record together), which, by contrast, shows a full exercise of the rights claimed.

6. That therefore because the facts and the request are not directly referred to constitutionally protected content of the rights claimed, must be rejected demand to be covered by Article 5, paragraph 1, of the Code of the Constitution.

For these reasons, the Constitutional Court with the authority under the Constitution of Peru

RESOLVED

dismiss the request. Published and notifíquese

.

SS. BEAUMONT

Callirgos

ETO STREET CROSS Hayen

Bathroom Fans And Electricity Bill

Casimiro Hernandez Ernesto Hernandez - Exp N ° 02513-2007-PA-TC (annuities, pension adjustment, occupational disease, a causal link) annuity

EXP. No.

02513-2007-PA/TC ICA

ERNESTO HERNÁNDEZ HERNÁNDEZ CASIMIRO



JUDGEMENT OF THE CONSTITUTIONAL COURT



In Lima, on the 13th day of October 2008, the Plenum of Constitutional Court, composed of judges Mesía Ramirez Vergara Gotelli, Landa Arroyo, Beaumont Callirgos, Calle Hayen, Eto Cruz and Alvarez Miranda, made the following statement


I. SUBJECT

constitutional tort
Appeal lodged by Mr. Ernesto Hernandez Casimiro Hernandez against the decision of the Second Civil Chamber of the Superior Court of Justice of Ica, on pages 109, date January 31, 2007, declaring the application inadmissible car.


II. BACKGROUND


1. Demand


On November 18, 2005, plaintiff brought the claim for protection against Rimac International Insurance and Reinsurance Company requesting that it be granted permanent disability pension or annuity for suffering an occupational disease of pneumoconiosis, under Chapter VII Supreme Decree N º 003-98-SA, plus payment of accrued pensions. Reported having worked in the mining company Shougang Hierro Peru SAA, exposed to mineral dust pollution, which is why today is suffering from pneumoconiosis with 80% disability.



2. Reply brief



The proposed located arbitration exceptions, limitation and lack of standing of the applicant, and answer the complaint alleging that the granting of a disability pension, the applicant must undergo testing established medical Supreme Decree No. 003-98-SA.



3. First-degree resolution



First Civil Court of Ica, dated September 11, 2006, declared unfounded and based the proposed exemptions to claim, arguing that the labor certification before the Court to be established that the applicant worked exposed to mining activities toxic hazards, and presented to the medical examination is credited suffering from pneumoconiosis in the second stage of evolution.

4. Second-degree resolution

The appeal, overturning the appeal, declared inadmissible, on the grounds that the sentence issued in Exp No. 2004-1846, shows that the applicant is already receiving a disability pension occupational disease being treated.


III. BASICS


1. § Source of demand and delimitation of the disputed materials

1. On the basis 37.b) of the 1417-2005 STC-PA, which is binding precedent, this Court has held that a part of the substance directly protected by the fundamental right to the pension laws that establish the requirements for their production, and ownership of the right claimed must be sufficiently established to make it possible to issue a statement from estimates.

2. The applicant seeks to be granted disability pension for occupational disease under the Law No. 26790. Accordingly, his claim falls within the circumstances set out in the foundation 37.b) of that sentence, so will consider the merits of the issue.

argues that the medical evaluation report dated 20 September 2003, has been proved which suffers from pneumoconiosis with 80% disability, why has the right to Rimac granted a disability pension for an occupational disease under the Law No. 26790.

3. For its part argues that the claim Rimac raised in this process has already been requested by the applicant under an earlier process, in which he ordered the Insurance Standards Office granted him a disability pension under an occupational disease to Law No. 26790. Therefore, the plaintiff is not entitled to a second disability pension for occupational disease under the Law No. 26790, as the Insurance Standards Office is paying it.

4. Delimited in this way the terms of debate, for this Court to determine whether it is legitimate that an insured can receive the same occupational disease two annuities under Decree Law No. 18846 or two disability pensions under Law No. 26790 or an annuity under Decree Law No. 18846 and an invalidity pension under the Law No. 26790. This is because the annuity was replaced by the disability pension to cover the same risks (work accidents and occupational diseases).


5. Prior to the trial of the merits, we must remember that in the SSTC 10063-2006-PA/TC, 06612-2005-PA/TC, 00061-2008-PA/TC 10087-2005-PA/TC and have established the binding criteria for the interpretation and application of Workers' Compensation Insurance and Occupational Diseases (SATEP) regulated by Decree Law No. 18846 and Supreme Decree N º 002-72-TR and Complementary Insurance for Hazardous Work (SCTR) regulated by Law No. 26790 and Supreme Decree No. 003-98-SA.

Therefore, taking into consideration that there are three sentences that establish binding precedent with respect to the SATEP and SCTR and that they are based or ratio decidendi, as well as case law develops neat topics not covered by the binding precedents, the Constitutional Court under its management function, it believes that such interpretative criteria are unified and established in a single statement, to ensure unity, predictability and legal certainty, and facilitate the use by litigants and judges.

2. § binding criteria of SATEP and SCTR


6. This Court to understand the controversies concerning the application of Decree Law No. 18846 or No. 26790 Act has encountered the following problems: a.


Prescription of annuity.

b. Scope of protection of Decree Law No. 18846 and Supreme Decree 002-72-TR. C.

The accreditation of the occupational disease. D.

Simultaneous perception of life pension or disability pension and compensation, of course compatibility and incompatibility. E.

The unenforceability of temporary disability grant access to a pension under the Law No. 26790.

f. The configuration of the disability and the reversal of the burden of proof.

g. The existence of a nexus or causal link to establish an occupational disease.

h. The realignment of the amount of the annuity or pension.

i. The minimum pension of Legislative Decree No. 817 and its relation to occupational disease annuity. J.

The SCTR arbitration and arbitration agreement exception.

k. The start date for payment of the annuity or disability pension

l. State responsibility in the SCTR.



7. However, it should be noted that the motivation of binding criteria to be set above, in some areas we refer to the grounds set out in the STC 10063-2006-PA/TC, and other foundations will develop concerned. Thus, on some issues we have to reiterate and binding precedents set in other we establish new precedents binding.


Also, before proceeding to unify the binding criteria and to establish new binding should be noted that the procedural rule that allows the Constitutional Court to establish binding precedents is recognized in Article 201 of the Constitution and Article VII of Preliminary Title Code of the Constitution.


In this sense, should be established as:

a) Rule Procedure: Constitutional Court, under Article 201 of the Constitution and Article VII of the Preliminary Title of the Code of the Constitution, has the authority to establish binding precedent through its decisions that acquire the force of res judicata, indicating the end of its regulatory effect.


2.1. § Limitation of annuity

8. At this point, we have to reiterate the considerations in the grounds 89 and 90, in the sense that the limitation period of three years. Article 13 of Decree Law No. 18846 to request the granting of an annuity disability, to be an unreasonable restriction, does not agree with the substance to the board that this Court has interpreted in the STCs 0050-2004-AI and 1417-2005-PA, so be considered inapplicable due to incompatibility with the standard constitutional.


9. In this regard, the Constitutional Court reiterates its binding precedent whereby: no limitation period to apply for the grant of an annuity under Decree Law No. 18846, as access to a pension is part of the constitutionally protected content the fundamental right to a pension, which is, like all fundamental rights, the nature of limitations.


2.2. § Scope of protection of Decree Law No. 18846 and Supreme Decree 002-72-TR


10. Regarding the scope of protection of Decree Law No. 18846 and Supreme Decree 002-72-TR, we refer to the considerations in the bases 66 and 67 of the STC 10063-2006-PA/TC.


11. In this regard, the Constitutional Court reiterates its consistent binding precedent that: do not lose the right to a pension for work as employee, as long as they have worked before as a laborer in the center of employment during the term of the Decree Law No. 18846, whenever the work performed as an employee does not affect the risk to health that was exposed during the performance of work as a laborer.


12. Also, you must also repeated as binding precedent: the workers who were never employed workers, or if you were not in the same workplace in which they work as employees, are protected by the disability pension of Decree Law No. 19990 in its subsection d) of Article 25. º indicates that the insured is entitled to an invalidity pension when common accident occurred or from work or occupational disease, provided that the date when the risk has been providing, in accordance with the provisions of Article 29. of Supreme Decree N º 011-74-TR.


2.3. § Entity responsible for the accreditation of the occupational disease


13. For the motivation of this point we refer to the base 96 of the STC 10063-2006-PA/TC, as states that Article 26., Decree Law No. 19990 is applicable, mutatis mutandis, to the annuity of Decree Law No. 18846 and the disability pension of Law No. 26790.


14. Therefore, the Constitutional Court as a precedent binding repeats, in the amparo proceedings relating to the granting of an annuity under Decree Law No. 18846 or disability pension under the Law No. 26790 of the occupational disease can only be credited with an examination or medical report issued by a Medical Evaluation Disability Commission of the Ministry of Health, EsSalud or an EPS, as stated in article 26., Decree Law No. 19990. Should be borne in mind that if after further verification it is found that the examination or medical opinion of incapacity or disability is false or contains incorrect information, will be responsible for this criminal and administrative proceedings, the doctor who issued the certificate and each of the members Medical Boards of the entities referred to, and the applicant.


2.4. § simultaneous perception annuity or pension and disability compensation: assumptions of compatibility and incompatibility


15. To determine what is compatible and incompatible assumptions simultaneous perception of pension annuity or pension and disability compensation or pension for life and disability pension, we refer to the considerations in the grounds from 100 to 102, 104 to 105 and 109 of the STC 10063-2006-PA/TC.


16. In this regard, concerning the simultaneous perception of annuity and pay, reiterating this Court as binding precedent: a.

An insured is incompatible with high perceived disability annuity and compensation. B.

It is inconsistent that a total permanent disability insured receives a lifetime pension and compensation. C.

It is compatible with a disability insured Partial permanent receives a lifetime pension and compensation.



17. Furthermore, with respect to the simultaneous perception of disability pension and compensation, also has to be reiterated as binding precedent: a.

It is incompatible with a severe disability insured receives disability pension and compensation. B.

It is incompatible with a policyholder receives total permanent disability pension and disability compensation. C.

It is compatible which an insured receives permanent partial disability pension and disability compensation.


18. Finally, concerning the simultaneous perception lifetime pension and disability pension, has to be reiterated as binding precedent "that no insured who receives annuity under Decree Law No. 18846 may be charged for the same accident or occupational disease or an increase in his incapacity to work a disability pension under Decree Law No. 19990 or No. 26790 Act. Also, any insured who receives disability pension under the Law No. 26790 may be charged for the same accident or occupational disease disability pension under the Private Pension System, as Article 115. Supreme Decree N º . No. 004-98-EF provides that the disability pension of no SPP involves the total or partial disability caused by accidents or occupational diseases.


2.5. § The unenforceability of temporary disability grant access to a pension under the Law No. 26790


19. Unlike SATEP, which did not establish compliance for any period prior to qualifying policyholders and former policyholders have access to a pension by accident or occupational disease, the SCTR itself so provides. Thus, Articles 19. º of Law N º 26790 and Supreme Decree N º 003-98-SA provides that the right to disability pension begins after expiration of the maximum period of temporary incapacity allowance covered by the Social Health Insurance (EsSalud).


Likewise, Article 25.6, paragraph c) of Supreme Decree No. 003-98-SA states that the insured to obtain the disability pension shall, in the process of granting the certificate start and end of the enjoyment of temporary disability awarded by EsSalud. Similarly, Article 26.2 of the Supreme Decree N º 003-98-SA provides that disability benefits will accrue from the day following the end of the period of 11 months and 10 consecutive days, for the temporary disability allowance granted EsSalud.


20. However, bearing in mind that the rules governing the SCTR provides a pre-qualification period (temporary disability for 11 months and 10 days in a row) to access a pension, to determine in which cases it is reasonable that the recipient of fundamental right to a pension can enforce that requirement.


regard, the Court considers that the enjoyment prior temporary disability as a condition for a disability pension is a reasonable requirement that can only be required to SCTR insured to maintain a working relationship existing, but not who have ended their relationship work, because it is medically possible that the effects of an occupational accident or occupational disease manifested after termination of employment.



In this regard, the Court in STC 02349-2005-PA/TC has stated that "payment of subsidies only applies when the employment relationship exists, so it is impossible to demand its perception as a precondition to granting pension after termination of the insured "because their demand to those who have ended their employment relationship, to be unreasonable, violate their fundamental right to a pension.


21. It has therefore established as a new binding precedent: Perception temporary disability grant awarded by EsSalud, shall not be required as a precondition to the granting of disability pension SCTR, when the link of the insured is over, is found to have irreversible occupational disease, and this has had its origin in the risky activity that developed. In the case of accidents, the same rule applies when the aftermath of the accident occurred during the employment relationship, are presented after the cessation.


2.7. § invalid configuration and shifting the burden of proof


22. When the accident or occupational disease was declared during the term of the employment relationship is presumed that the configuration of the disability is not an issue, since it is certain that it is covered by the policy of engagement SCTR. However, if the occupational disease is declared after the employment relationship ends, the configuration of disability and liability of the defendant becomes relevant facts, as they must determine if that has occurred within the policy term .


23. To do this, it should be noted that occupational diseases may occur during the employment relationship or the end of it, as there are diseases that can manifest in different ways and not necessarily preclude further by the provision of services. Therefore, when the occupational disease occurs at the end of the employment relationship, the head of the disability pension is the insurer or the entity maintaining the policy in force when there was the term of employment, as the disability occurred during the term of your policy.


24. Therefore, the Tribunal is to repeat as binding precedent: in the processes under which the claim is granted a disability pension under the Law No. 26790, the sites have the burden of providing medical examinations of control Annual and retirement, to demonstrate that the refusal to grant a decision is not manifestly arbitrary and unjustified. Moreover, under those processes in which the applicant is a former employees, sites must submit a medical examination of retirement, because if they do it is presumed that the applicant at the date of termination was ill and under the cover invalidity of the summoned. Also, processes must be deployed under the contracts include SCTR to determine the validity of the policy and coverage of disability during the employment relationship of the plaintiff.


2.8. § The nexus or causal link to establish an occupational disease


25. Regarding the requirement that there is a nexus or causal link between occupational disease and work performed to access the annuity under Decree Law No. 18846 or its replacement, the disability pension under the Act N. No. 26790, we refer to the considerations in the bases 81 and 113 to 114 of the STC 10063-2006-PA/TC.


26. In the case of occupational diseases caused by exposure to mineral dust sclerogenic necessary to specify its scope and reiterated as binding precedent: in the case of pneumoconiosis (silicosis), the anthracosis and asbestosis, the nexus or relationship causal in the case of the miners who work in underground mines or open pit, presumably provided the applicant has performed the risk work activities listed in Annex 5 of the Supreme Decree No. 009-97-SA because they are irreversible and degenerative diseases caused by exposure to mineral dust sclerogenic.


27. In the case of hearing loss, being a disease that can be of common origin or source training, must be repeated as binding precedent: to determine if hearing loss is a disease of occupational origin is necessary to prove the causal link between working conditions and disease, for which they have into account the functions performed by the applicant in his job, the time between the date of termination and the date of determination of the disease in addition to the conditions attached to their workplace, ie that the causality in this disease is not presumed but must prove, given that hearing loss is caused by repeated and prolonged exposure to noise. Therefore, the evidence that the applicant has to provide the process for defense to prove that hearing loss is suffering from an occupational disease, that is, to prove a nexus or causal link between the disease and the work performed, are procedural requirements.


2.9. § The realignment of the amount of the annuity or disability pension


28. It is settled doctrine of this Court that if an increase in the degree of incapacity and disability caused by accident or occupational disease must reset the amount of the annuity or pension. This is due to the institutional guarantee of social security is twofold, first, to protect the individual against the contingencies of life, and, secondly, to raise their quality of life.


support of the origin of the realignment, the Court in the STC 1008-2004-AA/TC, said that: a) The inadmissibility of reset distort the essence of insurance, which is designed to cover incapacity, it is reasonable, therefore, that the pension increases as the degree of disability increases, b) The risk of incapacity covered-product accidents or occupational diseases, is not static nor is exhausted, in all cases, at the time the incident occurs or is manifested the disease and c) There are accidents, and especially diseases that generate a degenerative progression of incapacity and incurable, such as pneumoconiosis (silicosis).


29. Therefore, the Court must establish as a new binding precedent that: appropriate adjustment of the amount of annuity of Decree Law No. 18846 as to increase the degree of disability, permanent partial disability to permanent total disability, permanent partial disability or incapacity large or total permanent disability to severe disability. It is also appropriate adjustment of the amount of disability pension of Law No. 26790 as to increase the degree of disability, permanent partial disability to permanent total disability or permanent partial disability to severe disability or total permanent disability to severe disability.


2.10. § The minimum pension of Legislative Decree No. 817 and its relationship with occupational disease annuity


30. On this point, the Court must reiterate the considerations in the bases 87 and 117 of the STC 10063-2006-PA/TC, in the sense that the minimum pension amounts established by the Fourth Supplementary Provision of Legislative Decree N. No. 817 for schemes carried out by the NPO does not apply to annuity of Decree Law No. 18846 or its replacement, the disability pension of Law No. 26790, basically because of occupational accidents and diseases professionals covered by Decree Law No. 18846 are not included in the regime of Decree Law No. 19990 and it is a Further pension generated by the risk of retirement (age and contributions).


31. Therefore, the Tribunal is to repeat as binding precedent: the minimum pension amounts set by the Fourth Supplementary Provision of Legislative Decree No. 817 do not apply to annuity of Decree Law No. 18846 or its substitute , the disability pension of Law No. 26790, because both services are provided to cover different risks and contingencies and are funded by various independent sources.


2.11. § The SCTR arbitration and arbitration agreement except


32. The framework the arbitration policy in the SCTR is provided and developed only in the Supreme Decree No. 003-98-SA. Thus, Article 9. No states:


The mere signing of a supplementary insurance contract risk work under any of their coverage, involves the submission of the contracting parties, as well as policyholders and beneficiaries the rules of conciliation and arbitration under Articles 90 and 91 of Supreme Decree No. 009-97-SA and the second supplementary provision of Supreme Decree 006-97-SA pursuant to which will be resolved ultimately all disputes in which they are involved interests of policyholders, BENEFICIARIES, THE PERUVIAN INSTITUTE OF SOCIAL SECURITY, PENSION OFFICE OF STANDARDS, ORGANIZATIONS HEALTH PROVIDERS, INSURERS AND EMPLOYERS.


Similarly, Article 25. No states:


(...) Article 25.5.3 Upon receipt of the application with complete documentation, the Insurer shall proceed directly to the evaluation of the documentation and qualification of disability status of the beneficiary, in the case, ruling on the merits of the claim not later than ten calendar days counted from the filing of pension.

25.5.4 In case of discrepancies regarding the status of the BENEFICIARY invalid, the dossier will be submitted to the National Institute of Rehabilitation for single-instance administrative pronouncement. The party is not satisfied with the decision of the National Institute of Rehabilitation, request the intervention of the Conciliation and Arbitration Centre of the Council Tax Health Care Providers, whose decision shall be considered res judicata.

25.5.5 If the discrepancies were concerned with the disabling condition of Beneficiary, the matter shall be directly submitted to the Center of Conciliation and Arbitration of the Council Tax Benefit of Health.


2.11.1. §. Arbitration under Article 9. ° of Supreme Decree No. 003-98-SA

33. As for the regulation of arbitration under Article 9. º of Supreme Decree No. 003-98-SA, it should be noted that the Constitutional Court, the foundation 120 of the STC 10063-2006-PA/TC, already has ruled on its constitutionality, arguing that regulate binding arbitration is contrary to the principle of autonomy and the right to effective judicial protection, in its aspect of access to justice and the natural judge.


34. In this regard, this Court is as binding precedent reiterate that: when a process is demanded under the grant of a disability pension under the Law No. 26790 and Supreme Decree N º 003-98-SA, and located propose an exception for arbitration or arbitration agreement be based on Article 9. Supreme Decree N º . No. 003-98-SA, the judge shall dismiss the objection under the responsibility of referring, because the grant application for a disability pension is part of the constitutionally protected content for the right to a pension, which has the status of unavailable and disability pension because of SCTR is designed to protect the right to health of the insured who has been affected by a work accident or occupational disease, which has also unavailable to the character of the parties.


2.11.2. §. Arbitration under Article 25. Of Supreme Decree N º 003-98-SA


35. Unlike binding arbitration under Article 9. No, the provisions of Article 25. º is a voluntary arbitration, which begins because one party is dissatisfied with the pronouncement of the National Rehabilitation Institute, and ending with resolution of Conciliation and Arbitration Centre of the Council Tax Benefit of Health.


36. Regard, please note that this Constitutional Court in STC found that the arbitration 00061-2008-PA/TC volunteer enjoys the presumption of constitutionality because your home is based on the principle of autonomy, which constitutes the essence and foundation of the arbitration because the arbitration involves the exclusion of the courts. It also established that the voluntary arbitration, to be considered constitutional, it must meet certain requirements at the time of installation of the arbitration body.


37. In this regard, that the arbitration process established on a voluntary basis to be constitutional, must be repeated as binding precedent: at the time of installation of the arbitration body the arbitrator shall leave reporting record: a.

The advantages offered arbitration by the Conciliation and Arbitration Centre of the Council Tax Benefit of Health. B.

That for the resolution of their dispute will apply case law and binding precedent established by the Constitutional Court. C.

The insured or beneficiary, if you prefer, you may give preference to arbitration and the judge, who is the Judiciary. D.

That the arbitration decision should be the resource that provides the General Law of Arbitration.

Voluntary arbitration is unconstitutional if it is initiated by a private insurer or the Insurance Standards Office and the insured or beneficiary does not wish to undergo it.



38. It should also be recalled that the arbitration decision should the request for defense, provided it has previously exhausted the remedies provided by the General Arbitration Act and there is a final judicial decision that resolves the appeal.


2.12. § Date of commencement of payment of the annuity or disability pension


39. As to the date on which you build the right to life pension or disability pension, this Court issued a precedent binding on the STC 00061-2008-PA/TC has stated that the contingency should be established from the date of issue of opinion or medical certificate Evaluation of a Medical Commission or Disability Ratings EsSalud, or the Ministry of Health or an EPS, which establishes the existence of an occupational disease, where the benefit derives precisely the evil that afflicts the applicant, and from that date to be paid the annuity of Decree Law No. 18846 or disability pension from the Law No. 26790 and its complementary and related.



40. Therefore, this Court is as binding precedent reiterate that: the date on which the right is generated, ie, the contingency should be established from the date of the opinion or medical certificate issued by a Medical Evaluation Commission and Ratings EsSalud disabilities, or the Ministry of Health or an EPS, which establishes the existence of an occupational disease, because the benefit derived from evil just afflicting the applicant, and from that date to be paid the annuity Decree Law No. 18846 or disability pension from the Law No. 26790 and its complementary and related.


2.13. § Responsibility of States in the SCTR


41. The Court in the grounds 124 to 126 of the STC 10063-2006-PA/TC to analyze Article 88. Of Supreme Decree No. 009-97-SA warned that the extra coverage of SCTR that falls on the ONP, as state agency responsible for pension qualification annuities and disability benefits for occupational hazards, only limited to the risks of permanent total disability and survivors' pensions, and operates if the employing entity is registered, ie not covered by the temporary disability and permanent partial disability.


42. Well, this Court, in order to integrate the regulatory gap under Article 88. Of Supreme Decree No. 009-97-SA, has to repeat as binding precedent: the extra coverage provided for in ONP Article 88. of Supreme Decree No. 009-97-SA also includes the risks of temporary disability and permanent partial disability, if the employing entity is registered in the Register of Employers Organizations that develop activities involving risk. In these cases, the ONP has recourse against the employing entity for the present value of benefits.


2.14.
Procedural Rules §

43. The Court in the grounds 140 and 146 of the STC 10063-2006-PA/TC developed some procedural rules must be considered in the processes under which claim is to grant a pension pursuant to Decree Law No. 18846, or of a disability pension under the Law No. 26790 and Supreme Decree N º 003-98-SA, which require a supplement for better development of constitutional processes and predictability of sentences.


44. As a first rule of procedure, we need to clarify the effects generated by the STC 10063-2006-PA/TC establish a rule that only binding opinions or medical examination issued by the Medical Commissions assessments or grades of EsSalud Disabilities, or the Ministry of Health or EPS established under Law No. 26790, is uniquely suitable evidence to demonstrate the processes under which a person suffers from an occupational disease, and therefore entitled to an annuity under Decree Law No. 18846, or a disability pension under the Law No. 26790 and Supreme Decree N º 003-98-SA.


45. However, taking into account the criteria referred to in the foundation binding precedent, the Court must reiterate as binding precedent: a.


The judges' demands to qualify under whose claim is to grant a pension pursuant to Decree Law No. 18846, or a disability pension under the Law No. 26790 and Supreme Decree No. 003-98 -SA, which have not yet been declared admissible, should be declared inadmissible, granting the applicant a maximum of 60 working days to present, as the expertise, advice or medical certificate issued by the Medical Commissions assessments or grades EsSalud Disability, or the Ministry of Health or EPS, failing to close the file.


b. In all proceedings for relief that are pending, and whose claim is to grant a pension pursuant to Decree Law No. 18846 or a disability pension under the Law No. 26790 and the Supreme Decree No. 003-98-SA, judges should require the applicant to submit within a maximum period of 60 days, as expertise, advice or medical certificate issued by a Medical Evaluation Commission or Disability Ratings EsSalud, or the Ministry of Health or an EPS, as long as the claimant to prove occupational disease has been attached to its application or presented during an examination or medical certificate issued by a public entity, and there is no contradiction between the documents.


c. In all proceedings for relief that are pending in which the applicant has submitted a certificate or medical examination issued by a private or private physician to test suffering from an occupational disease, the judges do not have to request the expertise referred, but declared inadmissible, since the certificates or medical examinations have no value as evidence referred to in the process under the Constitution to establish that the claimant suffers from a disease professional.



46. It is also desirable to establish what happens in those cases where the applicant fails to submit the advice or medical certificate issued by a Medical Commission Disability Evaluation and Rating Agency within 60 working days.



In this sense, the second procedural rule to be established as a new precedent is that, in the processes under which the applicant has requested the opinion and expertise or medical certificate issued by a Medical Evaluation Commission and Ratings disabilities and this has not been submitted within 60 working days counted from the date of receipt the requirement, the demand will be dismissed.



47. As several procedural rules in the foundation 45 above, it should be noted that these are only applicable to claims for relief that have been brought before January 19, 2008, as at that date were published in the official gazette El Peruano the SSTC 6612-2005-PA/TC and 10087-2005-PA/TC, which amounts to binding precedent the rules contained in the STC 10063-2006-PA/TC, which was published on the website of this Court on December 6 2007.



48. In order indicated, must be established procedural rule to be applied to claims for relief that are filed from January 19 2008. In this sense, the third procedural rule to be established as a new binding precedent is that: a.



Judges to qualify for protection filed claims from January 19, 2008, whose quest is to grant a pension pursuant to Decree Law No. 18846, or a disability pension under the Law No. 26 790 and Supreme Decree No. 003-98-SA, the declared inadmissible if it finds that the applicant has annexed to its application to the opinion or medical certificate issued by the Medical Commissions assessments or grades of EsSalud Disabilities, or the Ministry of Health or EPS.



49. Finally, should be set as the last rule of procedure in which cases it is valid to impose sanctions on the parties. In this sense, the fourth rule of procedure to be established as a new binding precedent is that: the ONP and insurance companies that do not apply the binding precedent will be imposed coercive measures under Article 22. º of CPConst. Also, the applicants lodging an amparo manifestly unfounded claims as contrary to binding precedent mentioned, they require payment of costs and costs of prosecution for their reckless actions. On the other hand, the lawyers require them to pay a fine, when the Court is established that they were aware processes that sponsor whose claims are contrary to binding precedent.



3. § Analysis of the dispute



50. On the possibility of receiving a pension twice by the same occupational disease, we must refer to binding precedent originally established in the STC-PA 10063-2006, and recognized as binding precedent by the SSTC 6612-2005-PA 10087-2005-PA as states that "no insured who receives annuity under Decree Law No. 18846 may be charged for the same accident or occupational disease or an increase in his incapacity to work a disability pension under Decree Law No. 19990 or to the Law No. 26790. "



51. With respect to items of interest to the resolution of this case, it should be noted that Resolution No. 11, dated May 24, 2005, issued by the Civil Chamber of the Superior Court of Justice of Ica, in the process under fallen in Exp No. 2004-1846, as contained in the file together, we prove that the Office of Normalization was ordered granted the plaintiff a disability pension for occupational disease under the Law No. 26790 and its complementary and related. Should also be noted that the referral process the claim for protection was upheld because the report medical evaluation dated 20 September 2003, which has also been submitted in this process, it was proved that the claimant suffers from pneumoconiosis (silicosis) with 80% disability.



52. Therefore, noticeable that the applicant is receiving a disability pension for occupational disease under the Law No. 26790, it is not legitimate to receive a second disability pension for the same occupational disease or illness, which is why the application must be dismissed.



For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED





1. Declare the petition.



2. Under Article VII of the Preliminary Constitutional Procedural Code, is repeated as binding precedent the rules contained in the grounds 9, 11, 12, 14, 16, 17, 18, 24, 26, 27, 31, 34, 37, 40 , 42 and 45 which are: a.



There is no limitation period to apply for the grant of an annuity under Decree Law No. 18846, as access to a pension is part of the content of constitutionally protected fundamental right to a pension, which is, like all fundamental rights , the nature of limitations. B.



You do not lose the right to a pension for work as employee, as long as they have worked before as a laborer in the center of employment during the term of the Decree Law No. 18846, whenever the work performed as an employee not diminishes the risk to health that was exposed during the performance of work as a laborer. C.



Workers employed workers who were never, or if you were not in the same workplace in which they work as employees, are protected by the disability pension of Decree Law No. 19990 in its subsection d) of article 25. º says the insured is entitled to an invalidity pension has been produced by common or work accident or occupational disease, provided that the date when the risk has been providing, in accordance with the provisions of Article 29., Decree Supreme N. º 011-74-TR. D.



In amparo proceedings relating to the granting of an annuity under Decree Law No. 18846 or disability pension under the Law No. 26790 of the occupational disease can only be credited with an examination or medical report issued by a Medical Commission Disability Evaluation of the Ministry of Health, EsSalud or an EPS, as noted by Article 26., Decree Law No. 19990. Should be borne in mind that if after further verification it is found that the examination or medical opinion of incapacity or disability is false or contains incorrect information, will be responsible for this criminal and administrative proceedings, the doctor who issued the certificate and each of the members Medical Boards of the entities referred to, and the applicant. E.



An insured is incompatible with high perceived disability annuity and compensation. It is incompatible

a total permanent disability insured receives a lifetime pension and compensation. It is compatible

a permanent partial disability insured receives a lifetime pension and compensation. F.



It is incompatible with a severe disability insured receives disability pension and compensation.

It is incompatible with a policyholder receives total permanent disability pension and disability compensation. It is compatible

a permanent partial disability insured receives disability pension and compensation. G.



Any insured who receives annuity under Decree Law No. 18846 may be charged for the same accident or occupational disease or an increase of work disability pension disability under Decree Law No. 19990 or No. 26790 Act. Also, any insured who receives disability pension under the Law No. 26790 may be charged for the same accident or occupational disease disability pension under the Private Pension System, as Article 115. Supreme Decree N º . No. 004-98-EF states that SPP disability pension does not cover the total or partial disability caused by accidents or occupational diseases.



h. In the processes under which the claim is granted a disability pension under the Law No. 26790, the sites have the burden of the exams annual monitoring medical and retirement, to demonstrate that the refusal to grant a decision is not manifestly arbitrary and unjustified. Moreover, under those processes in which the applicant is a former employees, sites must submit a medical examination of retirement, because if they do it is presumed that the applicant at the date of termination was ill and under the cover invalidity of the summoned. Also, processes must be deployed under the contracts include SCTR to determine the validity of the policy and coverage of disability during the employment relationship of the plaintiff. I.



In the case of pneumoconiosis (silicosis), the anthracosis and asbestosis, the nexus or causal link in the case of the miners who work in underground mines or open pit, presumably provided the applicant has performed the risk work activities listed in Annex 5 of Supreme Decree No. 009-97-SA, as they are irreversible and degenerative diseases caused by exposure to mineral dust sclerogenic. J.



To determine if hearing loss is a disease of occupational origin is necessary to prove the causal link between working conditions and disease, for which take into account the functions performed by the plaintiff in her job, the time elapsed between the date of termination and the date of determination of the disease in addition to the conditions attached to their workplace, ie that causation in this disease is not presumed but must prove, as that hearing loss is caused by repeated and prolonged exposure to noise. Therefore, the evidence that the applicant has to provide the process for defense to prove that hearing loss is suffering from an occupational disease, that is, to prove a nexus or causal link between the disease and the work performed, are procedural requirements. K.



The minimum pension amounts set by the Fourth Supplementary Provision of Legislative Decree No. 817 do not apply to annuity of Decree Law No. 18846 or its replacement, the disability pension of Law No. 26790, because both services are provided to cover different risks and contingencies and are funded by various independent sources.



l. When a process is sued under the provision of a disability pension under the Law No. 26790 and Supreme Decree N º 003-98-SA, and located propose an exception for arbitration or arbitration agreement which has the based on Article 9. of Supreme Decree N º 003-98-SA, the judge must dismiss liability under the exception referred to, because the grant application for a disability pension is part of the constitutionally protected content for the right to a pension, which has the status of unavailable, and because the disability pension is intended SCTR protect the right to health of the insured who has been affected by a work accident or occupational disease, which is also unavailable to the character of the parties.



m. At the time of installation of the arbitration body the arbitrator shall be reported to state that:

1. The advantages offered by the Centre for Conciliation Arbitration Arbitration and Council Tax Benefit of Health.

2. That for the resolution of their dispute will apply case law and binding precedent established by the Constitutional Court.

3. The insured or beneficiary, if you prefer, you may give preference to arbitration and the judge, who is the Judiciary.

4. That the arbitration decision should be the resource that provides the General Law of Arbitration.

Voluntary arbitration is unconstitutional if it is initiated by a private insurer or the Insurance Standards Office and the insured or beneficiary does not wish to undergo it.



n. The date is generated law, ie, the contingency should be established from the date of the opinion or medical certificate issued by a Medical Evaluation Commission or Disability Ratings EsSalud, or the Ministry of Health or an EPS, which establishes the existence of an occupational disease, as precisely the benefit derived from evil afflicting the applicant, and from that date to be paid the annuity of Decree Law No. 18846 or disability pension from the Law No. 26790 and its complementary and related .



o. Extra coverage of ONP in Article 88. Of Supreme Decree No. 009-97-SA also includes the temporary disability and risk permanent partial disability, if the employing entity is registered in the Register of employing entities that develop activities involving risk. In these cases, the ONP has recourse against the employing entity for the present value of benefits.



p. The judges' demands to qualify under whose claim is to grant a pension pursuant to Decree Law No. 18846, or a disability pension under the Law No. 26790 and Supreme Decree No. 003-98 -SA, which have not yet been declared admissible, should be declared inadmissible, granting the applicant a maximum of 60 working days to submit, as a skill, the opinion or medical certificate issued by the Medical Commissions assessments or grades of EsSalud Disabilities, or the Ministry of Health or EPS, failing to close the file.



In all proceedings for relief that are pending, and whose claim is to grant a pension pursuant to Decree Law No. 18846 or a disability pension under the Law No. 26790 and the Supreme Decree No. 003-98-SA, judges should require the applicant to submit within a maximum period of 60 days, as expertise, advice or medical certificate issued by a Medical Evaluation and Rating Committee EsSalud Disability, or the Ministry of Health or an EPS, as long as the claimant to prove an occupational disease has been attached to its application or presented during an examination or medical certificate issued by a public entity, and there is no contradiction among the documents.



In all proceedings for relief that are pending in which the applicant has submitted a certificate or medical examination issued by a private or private physician to test suffering from an occupational disease, the judges do not have to ask referred expertise, but declared inadmissible, since the certificates and medical examinations referred not have probative value in the process under the Constitution to establish that the claimant suffers from an occupational disease.



3. Under Article VII of the Preliminary Title of the Code of Constitutional set binding precedents and new rules contained in the bases 21, 29, 46, 48 and 49, which are: a.



The perception of temporary disability awarded by EsSalud, shall not be required as a precondition to the granting of disability pension SCTR, when the link of the insured is over, is found to have irreversible occupational disease, and this, has its origin in the risky activity that developed. In the case of accidents, the same rule applies when the aftermath of the accident occurred during the employment relationship, are presented after the cessation. B.



Appropriate adjustment of the amount of annuity of Decree Law No. 18846 as to increase the degree of disability, permanent partial disability to permanent total disability or permanent partial disability to great disability, total permanent disability or incapacity large . It is also appropriate adjustment of the amount of disability pension of Law No. 26790 as to increase the degree of disability, permanent partial disability to permanent total disability, or permanent partial disability to severe disability or total permanent disability to severe disability. C.



In the processes under which the applicant has requested the opinion and expertise or medical certificate issued by a Medical Commission Disability Evaluation and Rating Agency and this has not been submitted within 60 working days counted from the date of receipt of the request, the claim will be dismissed. D.



Judges to qualify for protection filed claims from January 19, 2008, whose quest is to grant a pension pursuant to Decree Law No. 18846, or a pension disability under Law No. 26790 and the Supreme Decree No. 003-98-SA, the declared inadmissible if it finds that the applicant has annexed to its application to the opinion or medical certificate issued by the Medical Commissions assessments or grades EsSalud Disability, or the Ministry of Health or EPS. E.



The ONP and insurance companies that do not apply the binding precedent will be imposed coercive measures under Article 22. º of CPConst. Also, the applicants lodging an amparo manifestly unfounded claims as contrary to binding precedent mentioned, they require payment of costs and costs of prosecution from acting recklessly. On the other hand, the lawyers require them to pay a fine, when the Court is established that they were aware of that sponsor processes whose claims are contrary to binding precedent.



published and notifíquese.





SS. MESSIAH



RAMÍREZ

VERGARA Gotelli
LANDA ARROYO

BEAUMONT STREET Callirgos

Hayen

ETO

CRUZ ALVAREZ MIRANDA

Redishbrown Discharge

occupational disease - Decree Law No. 18846 and Supreme Decree N ° 02-72-TR - Law No. 26790 and Supreme Decree No. 003-98-SA

EXP. No.

1008-2004-AA/TC JUNÍN
DAVID FLORES
PUCHURI
JUDGEMENT OF THE CONSTITUTIONAL COURT



In Lima, on the 15th day of March 2005, the Constitutional Court, sitting in full court, with the assistance of judges Alva Orlandini, President, Bardelli Lartirigoyen , Vice Chairman; Gonzales Ojeda García Toma, Gotelli and Landa Arroyo Vergara, made the following statement



SUBJECT


special appeal filed by Mr. David Puchuri Flores against the decision of the First Mixed Chamber of the Superior Court of Justice Junín, folio 115, the date February 5, 2004, which declared unfounded the claim for protection here.






BACKGROUND On June 16, 2003, the plaintiff brought an action for amparo against the Office (ONP), requesting that it be granted an annuity for an occupational disease pursuant to Decree Law No. 18,846 , and ordering the payment of accrued interest. Argues that it has worked for the Center Empresa Minera del Peru SA (Peru Centromín SA) for 31 years and having been exposed to inhalation of toxic gases, acids and mineral dust, acquired the occupational disease of pneumoconiosis (silicosis) credited as the medical examination issued by the Ministry of Health, asked why the annuity, without having obtained the defendant's response to date.



The demand answers located stating that the actor's claim does not relate to the violation of a constitutional right, but the recognition of a right, adding that the Evaluation Commission of Disabilities IPSS (EsSalud today) is the only authority jurisdiction to determine the occupational disease and the degree of disability it produces. It also indicates that the plaintiff was protected only by the regime repealed Accidents and Occupational Diseases to the January 31, 1978, when he finished his work activities as a laborer, there being no evidence that, in this period had acquired the disease.

First Civil Court of Huancayo, dated 25 September 2003, hereby established, in part, the action, finding that the plaintiff was entitled to appropriate management response, either favorably or not, so ordered to be issued this ruling, also declared it inadmissible on the granting of occupational disease annuity and the payment of refunds or earned, considering that the submitted medical certificate did not specify the degree of disability of the plaintiff, a prerequisite to establish the amount of income which would accrue.

The appeal, quashing the appeal, declared unfounded claim in its entirety, finding that the plaintiff failed to establish the degree of disability that have expressed a fundamental requirement to determine the origin of the right requested. BASICS





1. The applicant seeks the recognition and perception of an annuity is suffering from an occupational disease of pneumoconiosis (silicosis).

legal protection for workers who suffer occupational injuries and / or diseases

2. By Act No. 1378, as amended by Law No. 2290, on occupational accidents, issued in January 1911 and October 1916 respectively, was regulated to be protective against accidents at work, with limited coverage for employed workers and workers whose annual salary does not exceed "120 lbs Peruvian gold," provided, by way of compensation, payment of a pension, annuity or temporary, paid by the employer , which could replace its obligation to compensate by hiring an individual or group insurance. Subsequently, Act No. 7975, promulgated on January 12, 1935, included pneumoconiosis or any other ailment acquired by gas poisoning posed by chemicals during the execution of the work, among the diseases subject to compensation by the employer in accordance with the laws

N.os1378 and 2290 3. Decree Law No. 18846, Accident Insurance and Occupational Diseases, issued on April 28, 1971, he completed the voluntary insurance to make it obligatory for employers to insure their employees workers. Its purpose was to promote higher levels of life and adequate social protection policies, unifying the coverage of risks of accidents and occupational diseases within the social security organization.

benefits covered by this insurance were granted only to verification of the status of employed workers and does not require a qualifying period, and consisted of: a) assistance general practitioners and specialists, b) hospital and pharmacy; c) prostheses and orthopedic appliances; d) rehabilitation and replacement, and e) money. Economic benefits have replaced the familiar income, granting temporary subsidies or annuities, after verification of temporary disability, permanent or death of workers, ie, dependent on the effects of occupational accidents and occupational diseases have occurred in the person.

4. Supreme Decree 002-72-TR regulated Accident Insurance and Occupational Diseases on February 24, 1972. This standard defines the temporary disability as any organic lesion or function to prevent work and require medical care during a given time (article 35), and permanent disability, as the decline in physical or organic and incurable final of the insured. In turn, it is considered that the permanent disability is partial when it exceeds 65% and if it exceeds the total percentage of disability (Article 40).

Therefore, it is evident that the economic benefit due depended on the degree of disability of the insured, and its amount was determined based on the remuneration computable result, after following the procedure outlined in article 30, on which was applied percentage corresponding to the degree of disability for work, as shown in the table below:

Decree Law No. 18846 and Supreme Decree No. 02-72-TR


Disability Economic Benefit Levels


1. Grant Temporary



2. 2.1 Partial Permanent


40% to 65%
Proportional board (*)


+ 2.2 Total 65% 80% accommodation
(*) 2.3 Great Disability


need help from another person
100 Pension % (*)

(*) The pension is awarded for permanent disability for work, for it is known as annuities.

5. Law No. 26790, published on May 17, 1997, repealed Decree Law No. 18,846 and its operation mechanism replaced by Supplemental Security Risk Work, also mandatory, as an additional coverage to regular members of the Social Health Insurance to undertake activities high risk, by allowing employers to hire the coverage of occupational risks, and always either on his own, with the Telecommunication Standardization Bureau (ONP) or insurance companies duly accredited. This is the reason why EsSalud states that provide coverage to their policyholders by providing benefits for occupational diseases, among other contingencies (Article 2 of Law No. 26790), and reserves and economic benefit obligations Accident Insurance and Occupational Diseases, regulated by Decree Law No. 18846, be transferred to the Complementary Insurance for Hazardous Work managed by the ONP (Third Supplementary Provision of Law No. 26790).

6. Supreme Decree N º 003-98-SA approved the Supplemental Security Standards for Hazardous Work, restoring coverage for employed workers who worked in companies doing the activities listed in Annex 5 of Regulation Modernization Act Health and Social Security, Supreme Decree No. 009-97-SA. Chapter

III of the Supplemental Security Standards for Hazardous Work, notes that the financial benefits provided are: a) survivors' pensions; b) disability pension, and c) funeral expenses. Its regulation is evidence that the disability pension is the equivalent of the pension benefit for incapacity for work which was granted by Decree Law No. 18846; and that the terms "temporary disability", "permanent partial disability" and "total disability" have been replaced by temporary disability, permanent partial disability and permanent total disability, to define and cover the same way, the risk of inability to work.

In this regard, Article 18.2.1 of the Supreme Decree N º 003-98-SA defines permanent partial disability and decreased work capacity at a rate equal to or above 50% but less than 2 / 3 (66.66%), reason for which corresponds a lifetime monthly disability pension equivalent to 50% of the monthly wage. In contrast, Article 18.2.2 states that suffers from permanent total disability who is reduced in its ability to work on a permanent basis at a rate equal to or greater than 66.66%, in which case the lifetime monthly disability pension is equal to 70% of the monthly salary of the insured, equivalent the average insurable earnings for the 12 months preceding the accident, meaning the accident or occupational disease suffered by the insured.

Law No. 26790 and Supreme Decree No. 003-98-SA


Disability Economic Benefit Levels


1. Proportional temporary accommodation



2. 2.1 Partial Permanent


50% to 66.66%
pension of 50% (*)


+ 2.2 Total of 66.66%
pension of 80% (*)

need help from another person
Lifetime Pension 100% (*)


(*) The pension Invalidity grant generated by accident or occupational disease that causes permanent disability for work.

7. It is pertinent to emphasize that the National Pension System, regulated by Decree Law No. 19990, covers the risks of retirement and disability, and these grants pension only after the insured stating meet the minimum requirements for your enjoyment; and disability in cases where this is not the result of occupational accidents and occupational diseases covered by Decree Law No. 18846; is, which is scheduled for any impairment of physical or mental incapacity to produce for workers, employment in not performing their jobs at risk as long as the insured is found contributing. In both cases the main source of funding of future contingencies are mainly contributions from the worker and the employer, as the system is based on the principle of solidarity.

In contrast, the lifetime pension annuity-before-is based on compulsory insurance contracted by the employer, this being the beneficiary of the productive force deployed by the workers, in order that those who develop their work in conditions risk, are not in distress in the event of an accident at work or contracting an occupational diseases provided in its regulations, affecting their health by decreasing their working capacity.

8. Therefore, the benefits granted by the National Pension System of Decree Law No. 19990 are funded by mandatory contributions from workers to meet future contingencies of retirement or disability, while provided by the Supplemental Security Working Risk-before Accident Insurance and Occupational Diseases "from the insurance taken out by the employer's expense account and, in order to cover the contingency of a possible incapacity for work in hazardous conditions.

9. Since the benefits are financed from different sources and independent se encuentran previstas para cubrir riesgos y contingencias diferentes, se concluye que el riesgo de jubilación cubierto por el Sistema Nacional de Pensiones y los otros regímenes previsionales especiales concordantes con este, es independiente del riesgo de invalidez por incapacidad laboral producida por accidentes de trabajo o enfermedades profesionales, regulada actualmente por el Seguro Complementario de Trabajo de Riesgo Obligatorio, al punto tal que no es incompatible percibir simultáneamente una pensión de jubilación del Sistema Nacional de Pensiones y una pensión vitalicia (antes renta vitalicia) del Seguro Complementario de Trabajo de Riesgo.

La enfermedad profesional de neumoconiosis


10. Debe precisarse which means that occupational disease contracted by exposure to risk factors arising from work activity, which causes inability to perform normal duties of work.


11. On the other hand, pneumoconiosis (silicosis) is an occupational disease defined as a chronic respiratory condition, progressive, degenerative and incurable, which has four stages of evolution and is produced by the inhalation, retention and pulmonary reaction to various mineral dust, especially crystalline silica for prolonged periods. The most common functional disorder of the disease is the ventilatory defect resulting from the formation permanent scarring of the lungs, which causes loss of elasticity, requiring a greater effort to breathe. Diagnosed with a chest radiograph showing the typical pattern characteristic scars and nodules. Described in response to both the International Labour Organization and the World Health Organization has issued guidelines for the diagnosis, prevention and treatment.


12. The radiographic classification of pneumoconiosis International Labour Organization (ILO), Edition 1980, establishes the diagnosis of the disease into four categories or stages of evolution from the reading of chest radiographs: ONE (1 / 1 and 1 / 2), DOS (2 / 1, 2 / 2 and 2 / 3), THREE (3 / 2, 3 / 3 and 3 +) and Four (A, B and C). Parallel to this classification and in accordance with clinical signs of pneumoconiosis (silicosis) is classified, in turn, in simple (first stage), accelerated (second stage), advanced (third stage) and acute (fourth stage). Pneumoconiosis




Stages of evolution

Rating Rating Radiological Evolution



First stage 1 / 1 - 1 / 2
Simple


Second stage 2 / 1 - 2 / 2 - 2 / 3
Accelerated

Third stage
3 / 2 - 3 / 3 - 3 +

Advanced

Fourth Stage A - B - C
Acute


13. Although doctors can not predict the demonstration, development and evolution of this occupational disease, as may occur after a short time of exposure to inorganic dust, or many years after that, its origin (contingency) is indeed uniquely determined and direct in all cases, in the course of work activity, as well as the irreversible and progressive degeneration of the health of those who suffer this disease.


14. It is therefore concluded that the occupational disease of pneumoconiosis (Silicosis) causes permanent disability, being irreversible, degenerative, and at the time of its manifestation and diagnosis, disability may be partial or total, depending on the degree of evolution diagnosed occupational medical evaluation. Reset

amount of income or annuity

15. Article 18.2 of the Supreme Decree N º 003-98-SA, on Supplemental Security Standards for Hazardous Work, notes that the pension paid to the insured that corresponds to the degree of incapacity for work, the time of granting the benefit .


16. From a literal reading of that article might conclude that annuity you are entitled to the insured would be invariably fixed with respect to the degree of incapacity determined at time of application for benefits, awarding 50% or 70% of the monthly salary, whether it be permanent disability or total respectively. However, inasmuch as Article 27.6 of the same rule provides for the adjustment of pensions for disability of a permanent nature, in whole or in part, by reducing the level of disability, a contrario, it is valid to infer that necessary adjustment of the amount of lifetime disability pension is proven to increase the degree of disability of the insured. This assertion is based on:


a) The irrelevance of adjustment would distort the essence of insurance, which is designed to cover the inability to work, it is reasonable, therefore, that the coverage increases as the inability to work is emphasized.


b) The risk covered, the product unfit for work accidents or occupational diseases, is not static nor is exhausted, in all cases, at the time the incident occurs or is manifested the disease.


c) There are accidents, and especially diseases that produce degenerative progression of incapacity and incurable, as pneumoconiosis (silicosis).


13. Therefore, the Court considers that, in light of universal and progressive right to social security, recognized in article 10 of the current Constitution, the adjustment of pensions under Supreme Decree No. 003-98-SA should be interpreted extensively, for the benefit of the insured, to protect those that demonstrate the increase in disability which may generate incapacity, permanent partial disability to permanent total disability.


Consequently, in those cases shall provide for the increase in annuity (before annuity), 50% to 70% of the monthly salary specified in Article 18.2 of the Decree Supreme, and up to 100% of it, if he suffers from permanent total disability indispensably require the help of another person to move or to perform the essential functions for life, as indicated by the second paragraph of Article 18.2.2. the same standard.


Supreme Decree No. 003-98-SA

LIFETIME MONTHLY DISABILITY PENSION


Permanent Disability Rating Disability

% of "monthly salary" PARTIAL


50% to 50% 66.5%

TOTAL



66.6% to over 70%

100% (needs help of another person)


100%


14. In this case, the labor certification issued by the Center Empresa Minera del Peru SA (Centromin Peru), certifying that the applicant worked as a laborer in the Production Unit La Oroya, from October 31, 1961 until January 31, 1978, and the medical examination at the Institute of Occupational Health Abadia Alberto Hurtado Ministry of Health, dated July 9, 2002, which suffers from pneumoconiosis (silicosis) in the second stage of evolution (2 / 1 ), in accordance with the scale of radiographic profusion of radiographic classification established in the International Pneumoconiosis of the International Labour Organization (ILO), 1980 edition.

15. According to Articles 191 and following of the Civil Procedure Code, an extra application for constitutional processes, the occupational medical-practice management of Environmental Health - Occupational Health, Ministry of Health, is sufficient evidence proving the disease professional who has the appellant, pursuant to Supreme Resolution No. 014-93-TR, published on August 28, 1993, which contains the guidelines of the International Classification of the ILO Radiographic Assessment and Diagnosis of Pneumoconiosis, requiring the applicant immediate priority, so certification is not required by the Medical Evaluation of Disability EsSalud.

16. In the aforementioned medical examination stated in page 20, recommends the application of existing laws on occupational disease, but it was found that the document has not been indicated the degree of work disability of the plaintiff, pursuant to the standards listed in the previous basis and the information contained in the instrumental procedure on pages 123 to 129, the Collegiate interpreted that in the absence of an explicit medical statement, pneumoconiosis (silicosis) in the first stage of evolution occurs, at least Permanent Partial Disability, and from the second stage of evolution, disability increases to more than 66.66%, generating a total permanent disability, thus defined both by Articles 18.2.1 and 18.2.2. Supreme Decree N º 003-98-SA Standards Supplemental Security Risk.

In summary, pneumoconiosis results in permanent disability, partial or total, as detailed below: Stages of evolution


Permanent Disability Rating Disability Employment



PARTIAL
First stage of not less than 50% to 66.65 % Second stage







TOTAL not less than 66.66%

Third stage Fourth stage




17. It must be emphasized that the actor does not lose his rights as an employee having served in the same workplace during the period from February 1, 1978 and May 15, 1993, since it does not affect the risk that their health was exposed in their roles as workers, since, as has been stated, the symptoms of occupational disease have no preset development and evolution, but its origin is indeed determined in the period of occupational hazard, especially when the current legislation has abandoned the distinction between workers and employees, and has built specifically, to those who work as employees within the coverage of work accidents and occupational diseases.

18. The Constitutional Court in STC and 574-2003-AA/TC 956-2001-AA/TC, said that in cases of restoration of rights and in which the payment of the benefit is insignificant, in fairness, be applied Article 1236 of the Civil Code. They also point enforceable to be taken into account article 13 of the Constitution of 1979, which declared that "Social Security is intended to cover sickness, maternity, invalidity, unemployment, accident, old age, orphans and other contingency likely to be protected according to law ", which is consistent with the provisions of Article 10 ° of the Constitution of 1993.

19. Therefore, present noticeable that the plaintiff was protected during their working for the benefits of Decree Law No. 18846, belongs to enjoy the benefits are established by the standard replacement and receive permanent total disability pension of at least 66.66 %, in response to organic functional disability suffers as a result of pneumoconiosis (silicosis) in the second stage of evolution.


20. As to the date on which you build the right, the Court considers that the test was classified as surrogate appropriate medical examination submitted by the appellant, in the absence of delivery of the Disability Evaluation Commission, the contingency should be established from the date of the medical statement attesting to the existence of an occupational disease, because the benefit derived from evil just ails applicant, and from that date to be paid the lifetime pension annuity-before-in accordance with the provisions of Article 19 of Supreme Decree N º 003-98-SA.


21. Therefore, having been established violation of the rights to social security and free access to health and pension benefits, enshrined in Articles 10 ° and 11 ° of the current Constitution of Peru, located corresponding order that granted the plaintiff a disability pension for life, and to pay rebates accrued from the July 9, 2002.


For these reasons, the Constitutional Court with the authority under the Constitution of Peru




RESOLVED 1. Upheld the complaint.

2. Orders the defendant entity granted the appellant the lifetime disability pension for an occupational disease under the Law No. 26790 and its complementary and related, from the July 9, 2002, including accrued interest generated from that date, according to the fundamentals of this sentence.


published and notifíquese.

SS. Alva Orlandini



Bardelli Lartirigoyen


OJEDA GARCÍA GONZALES TAKES
VERGARA Gotelli

LANDA ARROYO