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
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
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