EXP. No.
1008-2004-AA/TC JUNÍN
DAVID FLORES
PUCHURI
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 15th day of March 2005, the Constitutional Court, sitting in full court, with the assistance of judges Alva Orlandini, President, Bardelli Lartirigoyen , Vice Chairman; Gonzales Ojeda García Toma, Gotelli and Landa Arroyo Vergara, made the following statement
SUBJECT
special appeal filed by Mr. David Puchuri Flores against the decision of the First Mixed Chamber of the Superior Court of Justice Junín, folio 115, the date February 5, 2004, which declared unfounded the claim for protection here.
BACKGROUND On June 16, 2003, the plaintiff brought an action for amparo against the Office (ONP), requesting that it be granted an annuity for an occupational disease pursuant to Decree Law No. 18,846 , and ordering the payment of accrued interest. Argues that it has worked for the Center Empresa Minera del Peru SA (Peru Centromín SA) for 31 years and having been exposed to inhalation of toxic gases, acids and mineral dust, acquired the occupational disease of pneumoconiosis (silicosis) credited as the medical examination issued by the Ministry of Health, asked why the annuity, without having obtained the defendant's response to date.
The demand answers located stating that the actor's claim does not relate to the violation of a constitutional right, but the recognition of a right, adding that the Evaluation Commission of Disabilities IPSS (EsSalud today) is the only authority jurisdiction to determine the occupational disease and the degree of disability it produces. It also indicates that the plaintiff was protected only by the regime repealed Accidents and Occupational Diseases to the January 31, 1978, when he finished his work activities as a laborer, there being no evidence that, in this period had acquired the disease.
First Civil Court of Huancayo, dated 25 September 2003, hereby established, in part, the action, finding that the plaintiff was entitled to appropriate management response, either favorably or not, so ordered to be issued this ruling, also declared it inadmissible on the granting of occupational disease annuity and the payment of refunds or earned, considering that the submitted medical certificate did not specify the degree of disability of the plaintiff, a prerequisite to establish the amount of income which would accrue.
The appeal, quashing the appeal, declared unfounded claim in its entirety, finding that the plaintiff failed to establish the degree of disability that have expressed a fundamental requirement to determine the origin of the right requested. BASICS
1. The applicant seeks the recognition and perception of an annuity is suffering from an occupational disease of pneumoconiosis (silicosis).
legal protection for workers who suffer occupational injuries and / or diseases
2. By Act No. 1378, as amended by Law No. 2290, on occupational accidents, issued in January 1911 and October 1916 respectively, was regulated to be protective against accidents at work, with limited coverage for employed workers and workers whose annual salary does not exceed "120 lbs Peruvian gold," provided, by way of compensation, payment of a pension, annuity or temporary, paid by the employer , which could replace its obligation to compensate by hiring an individual or group insurance. Subsequently, Act No. 7975, promulgated on January 12, 1935, included pneumoconiosis or any other ailment acquired by gas poisoning posed by chemicals during the execution of the work, among the diseases subject to compensation by the employer in accordance with the laws
N.os1378 and 2290 3. Decree Law No. 18846, Accident Insurance and Occupational Diseases, issued on April 28, 1971, he completed the voluntary insurance to make it obligatory for employers to insure their employees workers. Its purpose was to promote higher levels of life and adequate social protection policies, unifying the coverage of risks of accidents and occupational diseases within the social security organization.
benefits covered by this insurance were granted only to verification of the status of employed workers and does not require a qualifying period, and consisted of: a) assistance general practitioners and specialists, b) hospital and pharmacy; c) prostheses and orthopedic appliances; d) rehabilitation and replacement, and e) money. Economic benefits have replaced the familiar income, granting temporary subsidies or annuities, after verification of temporary disability, permanent or death of workers, ie, dependent on the effects of occupational accidents and occupational diseases have occurred in the person.
4. Supreme Decree 002-72-TR regulated Accident Insurance and Occupational Diseases on February 24, 1972. This standard defines the temporary disability as any organic lesion or function to prevent work and require medical care during a given time (article 35), and permanent disability, as the decline in physical or organic and incurable final of the insured. In turn, it is considered that the permanent disability is partial when it exceeds 65% and if it exceeds the total percentage of disability (Article 40).
Therefore, it is evident that the economic benefit due depended on the degree of disability of the insured, and its amount was determined based on the remuneration computable result, after following the procedure outlined in article 30, on which was applied percentage corresponding to the degree of disability for work, as shown in the table below:
Decree Law No. 18846 and Supreme Decree No. 02-72-TR
Disability Economic Benefit Levels
1. Grant Temporary
2. 2.1 Partial Permanent
40% to 65%
Proportional board (*)
+ 2.2 Total 65% 80% accommodation
(*) 2.3 Great Disability
need help from another person
100 Pension % (*)
(*) The pension is awarded for permanent disability for work, for it is known as annuities.
5. Law No. 26790, published on May 17, 1997, repealed Decree Law No. 18,846 and its operation mechanism replaced by Supplemental Security Risk Work, also mandatory, as an additional coverage to regular members of the Social Health Insurance to undertake activities high risk, by allowing employers to hire the coverage of occupational risks, and always either on his own, with the Telecommunication Standardization Bureau (ONP) or insurance companies duly accredited. This is the reason why EsSalud states that provide coverage to their policyholders by providing benefits for occupational diseases, among other contingencies (Article 2 of Law No. 26790), and reserves and economic benefit obligations Accident Insurance and Occupational Diseases, regulated by Decree Law No. 18846, be transferred to the Complementary Insurance for Hazardous Work managed by the ONP (Third Supplementary Provision of Law No. 26790).
6. Supreme Decree N º 003-98-SA approved the Supplemental Security Standards for Hazardous Work, restoring coverage for employed workers who worked in companies doing the activities listed in Annex 5 of Regulation Modernization Act Health and Social Security, Supreme Decree No. 009-97-SA. Chapter
III of the Supplemental Security Standards for Hazardous Work, notes that the financial benefits provided are: a) survivors' pensions; b) disability pension, and c) funeral expenses. Its regulation is evidence that the disability pension is the equivalent of the pension benefit for incapacity for work which was granted by Decree Law No. 18846; and that the terms "temporary disability", "permanent partial disability" and "total disability" have been replaced by temporary disability, permanent partial disability and permanent total disability, to define and cover the same way, the risk of inability to work.
In this regard, Article 18.2.1 of the Supreme Decree N º 003-98-SA defines permanent partial disability and decreased work capacity at a rate equal to or above 50% but less than 2 / 3 (66.66%), reason for which corresponds a lifetime monthly disability pension equivalent to 50% of the monthly wage. In contrast, Article 18.2.2 states that suffers from permanent total disability who is reduced in its ability to work on a permanent basis at a rate equal to or greater than 66.66%, in which case the lifetime monthly disability pension is equal to 70% of the monthly salary of the insured, equivalent the average insurable earnings for the 12 months preceding the accident, meaning the accident or occupational disease suffered by the insured.
Law No. 26790 and Supreme Decree No. 003-98-SA
Disability Economic Benefit Levels
1. Proportional temporary accommodation
2. 2.1 Partial Permanent
50% to 66.66%
pension of 50% (*)
+ 2.2 Total of 66.66%
pension of 80% (*)
need help from another person
Lifetime Pension 100% (*)
(*) The pension Invalidity grant generated by accident or occupational disease that causes permanent disability for work.
7. It is pertinent to emphasize that the National Pension System, regulated by Decree Law No. 19990, covers the risks of retirement and disability, and these grants pension only after the insured stating meet the minimum requirements for your enjoyment; and disability in cases where this is not the result of occupational accidents and occupational diseases covered by Decree Law No. 18846; is, which is scheduled for any impairment of physical or mental incapacity to produce for workers, employment in not performing their jobs at risk as long as the insured is found contributing. In both cases the main source of funding of future contingencies are mainly contributions from the worker and the employer, as the system is based on the principle of solidarity.
In contrast, the lifetime pension annuity-before-is based on compulsory insurance contracted by the employer, this being the beneficiary of the productive force deployed by the workers, in order that those who develop their work in conditions risk, are not in distress in the event of an accident at work or contracting an occupational diseases provided in its regulations, affecting their health by decreasing their working capacity.
8. Therefore, the benefits granted by the National Pension System of Decree Law No. 19990 are funded by mandatory contributions from workers to meet future contingencies of retirement or disability, while provided by the Supplemental Security Working Risk-before Accident Insurance and Occupational Diseases "from the insurance taken out by the employer's expense account and, in order to cover the contingency of a possible incapacity for work in hazardous conditions.
9. Since the benefits are financed from different sources and independent se encuentran previstas para cubrir riesgos y contingencias diferentes, se concluye que el riesgo de jubilación cubierto por el Sistema Nacional de Pensiones y los otros regímenes previsionales especiales concordantes con este, es independiente del riesgo de invalidez por incapacidad laboral producida por accidentes de trabajo o enfermedades profesionales, regulada actualmente por el Seguro Complementario de Trabajo de Riesgo Obligatorio, al punto tal que no es incompatible percibir simultáneamente una pensión de jubilación del Sistema Nacional de Pensiones y una pensión vitalicia (antes renta vitalicia) del Seguro Complementario de Trabajo de Riesgo.
La enfermedad profesional de neumoconiosis
10. Debe precisarse which means that occupational disease contracted by exposure to risk factors arising from work activity, which causes inability to perform normal duties of work.
11. On the other hand, pneumoconiosis (silicosis) is an occupational disease defined as a chronic respiratory condition, progressive, degenerative and incurable, which has four stages of evolution and is produced by the inhalation, retention and pulmonary reaction to various mineral dust, especially crystalline silica for prolonged periods. The most common functional disorder of the disease is the ventilatory defect resulting from the formation permanent scarring of the lungs, which causes loss of elasticity, requiring a greater effort to breathe. Diagnosed with a chest radiograph showing the typical pattern characteristic scars and nodules. Described in response to both the International Labour Organization and the World Health Organization has issued guidelines for the diagnosis, prevention and treatment.
12. The radiographic classification of pneumoconiosis International Labour Organization (ILO), Edition 1980, establishes the diagnosis of the disease into four categories or stages of evolution from the reading of chest radiographs: ONE (1 / 1 and 1 / 2), DOS (2 / 1, 2 / 2 and 2 / 3), THREE (3 / 2, 3 / 3 and 3 +) and Four (A, B and C). Parallel to this classification and in accordance with clinical signs of pneumoconiosis (silicosis) is classified, in turn, in simple (first stage), accelerated (second stage), advanced (third stage) and acute (fourth stage). Pneumoconiosis
Stages of evolution
Rating Rating Radiological Evolution
First stage 1 / 1 - 1 / 2
Simple
Second stage 2 / 1 - 2 / 2 - 2 / 3
Accelerated
Third stage
3 / 2 - 3 / 3 - 3 +
Advanced
Fourth Stage A - B - C
Acute
13. Although doctors can not predict the demonstration, development and evolution of this occupational disease, as may occur after a short time of exposure to inorganic dust, or many years after that, its origin (contingency) is indeed uniquely determined and direct in all cases, in the course of work activity, as well as the irreversible and progressive degeneration of the health of those who suffer this disease.
14. It is therefore concluded that the occupational disease of pneumoconiosis (Silicosis) causes permanent disability, being irreversible, degenerative, and at the time of its manifestation and diagnosis, disability may be partial or total, depending on the degree of evolution diagnosed occupational medical evaluation. Reset
amount of income or annuity
15. Article 18.2 of the Supreme Decree N º 003-98-SA, on Supplemental Security Standards for Hazardous Work, notes that the pension paid to the insured that corresponds to the degree of incapacity for work, the time of granting the benefit .
16. From a literal reading of that article might conclude that annuity you are entitled to the insured would be invariably fixed with respect to the degree of incapacity determined at time of application for benefits, awarding 50% or 70% of the monthly salary, whether it be permanent disability or total respectively. However, inasmuch as Article 27.6 of the same rule provides for the adjustment of pensions for disability of a permanent nature, in whole or in part, by reducing the level of disability, a contrario, it is valid to infer that necessary adjustment of the amount of lifetime disability pension is proven to increase the degree of disability of the insured. This assertion is based on:
a) The irrelevance of adjustment would distort the essence of insurance, which is designed to cover the inability to work, it is reasonable, therefore, that the coverage increases as the inability to work is emphasized.
b) The risk covered, the product unfit for work accidents or occupational diseases, is not static nor is exhausted, in all cases, at the time the incident occurs or is manifested the disease.
c) There are accidents, and especially diseases that produce degenerative progression of incapacity and incurable, as pneumoconiosis (silicosis).
13. Therefore, the Court considers that, in light of universal and progressive right to social security, recognized in article 10 of the current Constitution, the adjustment of pensions under Supreme Decree No. 003-98-SA should be interpreted extensively, for the benefit of the insured, to protect those that demonstrate the increase in disability which may generate incapacity, permanent partial disability to permanent total disability.
Consequently, in those cases shall provide for the increase in annuity (before annuity), 50% to 70% of the monthly salary specified in Article 18.2 of the Decree Supreme, and up to 100% of it, if he suffers from permanent total disability indispensably require the help of another person to move or to perform the essential functions for life, as indicated by the second paragraph of Article 18.2.2. the same standard.
Supreme Decree No. 003-98-SA
LIFETIME MONTHLY DISABILITY PENSION
Permanent Disability Rating Disability
% of "monthly salary" PARTIAL
50% to 50% 66.5%
TOTAL
66.6% to over 70%
100% (needs help of another person)
100%
14. In this case, the labor certification issued by the Center Empresa Minera del Peru SA (Centromin Peru), certifying that the applicant worked as a laborer in the Production Unit La Oroya, from October 31, 1961 until January 31, 1978, and the medical examination at the Institute of Occupational Health Abadia Alberto Hurtado Ministry of Health, dated July 9, 2002, which suffers from pneumoconiosis (silicosis) in the second stage of evolution (2 / 1 ), in accordance with the scale of radiographic profusion of radiographic classification established in the International Pneumoconiosis of the International Labour Organization (ILO), 1980 edition.
15. According to Articles 191 and following of the Civil Procedure Code, an extra application for constitutional processes, the occupational medical-practice management of Environmental Health - Occupational Health, Ministry of Health, is sufficient evidence proving the disease professional who has the appellant, pursuant to Supreme Resolution No. 014-93-TR, published on August 28, 1993, which contains the guidelines of the International Classification of the ILO Radiographic Assessment and Diagnosis of Pneumoconiosis, requiring the applicant immediate priority, so certification is not required by the Medical Evaluation of Disability EsSalud.
16. In the aforementioned medical examination stated in page 20, recommends the application of existing laws on occupational disease, but it was found that the document has not been indicated the degree of work disability of the plaintiff, pursuant to the standards listed in the previous basis and the information contained in the instrumental procedure on pages 123 to 129, the Collegiate interpreted that in the absence of an explicit medical statement, pneumoconiosis (silicosis) in the first stage of evolution occurs, at least Permanent Partial Disability, and from the second stage of evolution, disability increases to more than 66.66%, generating a total permanent disability, thus defined both by Articles 18.2.1 and 18.2.2. Supreme Decree N º 003-98-SA Standards Supplemental Security Risk.
In summary, pneumoconiosis results in permanent disability, partial or total, as detailed below: Stages of evolution
Permanent Disability Rating Disability Employment
PARTIAL
First stage of not less than 50% to 66.65 % Second stage
TOTAL not less than 66.66%
Third stage Fourth stage
17. It must be emphasized that the actor does not lose his rights as an employee having served in the same workplace during the period from February 1, 1978 and May 15, 1993, since it does not affect the risk that their health was exposed in their roles as workers, since, as has been stated, the symptoms of occupational disease have no preset development and evolution, but its origin is indeed determined in the period of occupational hazard, especially when the current legislation has abandoned the distinction between workers and employees, and has built specifically, to those who work as employees within the coverage of work accidents and occupational diseases.
18. The Constitutional Court in STC and 574-2003-AA/TC 956-2001-AA/TC, said that in cases of restoration of rights and in which the payment of the benefit is insignificant, in fairness, be applied Article 1236 of the Civil Code. They also point enforceable to be taken into account article 13 of the Constitution of 1979, which declared that "Social Security is intended to cover sickness, maternity, invalidity, unemployment, accident, old age, orphans and other contingency likely to be protected according to law ", which is consistent with the provisions of Article 10 ° of the Constitution of 1993.
19. Therefore, present noticeable that the plaintiff was protected during their working for the benefits of Decree Law No. 18846, belongs to enjoy the benefits are established by the standard replacement and receive permanent total disability pension of at least 66.66 %, in response to organic functional disability suffers as a result of pneumoconiosis (silicosis) in the second stage of evolution.
20. As to the date on which you build the right, the Court considers that the test was classified as surrogate appropriate medical examination submitted by the appellant, in the absence of delivery of the Disability Evaluation Commission, the contingency should be established from the date of the medical statement attesting to the existence of an occupational disease, because the benefit derived from evil just ails applicant, and from that date to be paid the lifetime pension annuity-before-in accordance with the provisions of Article 19 of Supreme Decree N º 003-98-SA.
21. Therefore, having been established violation of the rights to social security and free access to health and pension benefits, enshrined in Articles 10 ° and 11 ° of the current Constitution of Peru, located corresponding order that granted the plaintiff a disability pension for life, and to pay rebates accrued from the July 9, 2002.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED 1. Upheld the complaint.
2. Orders the defendant entity granted the appellant the lifetime disability pension for an occupational disease under the Law No. 26790 and its complementary and related, from the July 9, 2002, including accrued interest generated from that date, according to the fundamentals of this sentence.
published and notifíquese.
SS. Alva Orlandini
Bardelli Lartirigoyen
OJEDA GARCÍA GONZALES TAKES
VERGARA Gotelli
LANDA ARROYO
1008-2004-AA/TC JUNÍN
DAVID FLORES
PUCHURI
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 15th day of March 2005, the Constitutional Court, sitting in full court, with the assistance of judges Alva Orlandini, President, Bardelli Lartirigoyen , Vice Chairman; Gonzales Ojeda García Toma, Gotelli and Landa Arroyo Vergara, made the following statement
SUBJECT
special appeal filed by Mr. David Puchuri Flores against the decision of the First Mixed Chamber of the Superior Court of Justice Junín, folio 115, the date February 5, 2004, which declared unfounded the claim for protection here.
BACKGROUND On June 16, 2003, the plaintiff brought an action for amparo against the Office (ONP), requesting that it be granted an annuity for an occupational disease pursuant to Decree Law No. 18,846 , and ordering the payment of accrued interest. Argues that it has worked for the Center Empresa Minera del Peru SA (Peru Centromín SA) for 31 years and having been exposed to inhalation of toxic gases, acids and mineral dust, acquired the occupational disease of pneumoconiosis (silicosis) credited as the medical examination issued by the Ministry of Health, asked why the annuity, without having obtained the defendant's response to date.
The demand answers located stating that the actor's claim does not relate to the violation of a constitutional right, but the recognition of a right, adding that the Evaluation Commission of Disabilities IPSS (EsSalud today) is the only authority jurisdiction to determine the occupational disease and the degree of disability it produces. It also indicates that the plaintiff was protected only by the regime repealed Accidents and Occupational Diseases to the January 31, 1978, when he finished his work activities as a laborer, there being no evidence that, in this period had acquired the disease.
First Civil Court of Huancayo, dated 25 September 2003, hereby established, in part, the action, finding that the plaintiff was entitled to appropriate management response, either favorably or not, so ordered to be issued this ruling, also declared it inadmissible on the granting of occupational disease annuity and the payment of refunds or earned, considering that the submitted medical certificate did not specify the degree of disability of the plaintiff, a prerequisite to establish the amount of income which would accrue.
The appeal, quashing the appeal, declared unfounded claim in its entirety, finding that the plaintiff failed to establish the degree of disability that have expressed a fundamental requirement to determine the origin of the right requested. BASICS
1. The applicant seeks the recognition and perception of an annuity is suffering from an occupational disease of pneumoconiosis (silicosis).
legal protection for workers who suffer occupational injuries and / or diseases
2. By Act No. 1378, as amended by Law No. 2290, on occupational accidents, issued in January 1911 and October 1916 respectively, was regulated to be protective against accidents at work, with limited coverage for employed workers and workers whose annual salary does not exceed "120 lbs Peruvian gold," provided, by way of compensation, payment of a pension, annuity or temporary, paid by the employer , which could replace its obligation to compensate by hiring an individual or group insurance. Subsequently, Act No. 7975, promulgated on January 12, 1935, included pneumoconiosis or any other ailment acquired by gas poisoning posed by chemicals during the execution of the work, among the diseases subject to compensation by the employer in accordance with the laws
N.os1378 and 2290 3. Decree Law No. 18846, Accident Insurance and Occupational Diseases, issued on April 28, 1971, he completed the voluntary insurance to make it obligatory for employers to insure their employees workers. Its purpose was to promote higher levels of life and adequate social protection policies, unifying the coverage of risks of accidents and occupational diseases within the social security organization.
benefits covered by this insurance were granted only to verification of the status of employed workers and does not require a qualifying period, and consisted of: a) assistance general practitioners and specialists, b) hospital and pharmacy; c) prostheses and orthopedic appliances; d) rehabilitation and replacement, and e) money. Economic benefits have replaced the familiar income, granting temporary subsidies or annuities, after verification of temporary disability, permanent or death of workers, ie, dependent on the effects of occupational accidents and occupational diseases have occurred in the person.
4. Supreme Decree 002-72-TR regulated Accident Insurance and Occupational Diseases on February 24, 1972. This standard defines the temporary disability as any organic lesion or function to prevent work and require medical care during a given time (article 35), and permanent disability, as the decline in physical or organic and incurable final of the insured. In turn, it is considered that the permanent disability is partial when it exceeds 65% and if it exceeds the total percentage of disability (Article 40).
Therefore, it is evident that the economic benefit due depended on the degree of disability of the insured, and its amount was determined based on the remuneration computable result, after following the procedure outlined in article 30, on which was applied percentage corresponding to the degree of disability for work, as shown in the table below:
Decree Law No. 18846 and Supreme Decree No. 02-72-TR
Disability Economic Benefit Levels
1. Grant Temporary
2. 2.1 Partial Permanent
40% to 65%
Proportional board (*)
+ 2.2 Total 65% 80% accommodation
(*) 2.3 Great Disability
need help from another person
100 Pension % (*)
(*) The pension is awarded for permanent disability for work, for it is known as annuities.
5. Law No. 26790, published on May 17, 1997, repealed Decree Law No. 18,846 and its operation mechanism replaced by Supplemental Security Risk Work, also mandatory, as an additional coverage to regular members of the Social Health Insurance to undertake activities high risk, by allowing employers to hire the coverage of occupational risks, and always either on his own, with the Telecommunication Standardization Bureau (ONP) or insurance companies duly accredited. This is the reason why EsSalud states that provide coverage to their policyholders by providing benefits for occupational diseases, among other contingencies (Article 2 of Law No. 26790), and reserves and economic benefit obligations Accident Insurance and Occupational Diseases, regulated by Decree Law No. 18846, be transferred to the Complementary Insurance for Hazardous Work managed by the ONP (Third Supplementary Provision of Law No. 26790).
6. Supreme Decree N º 003-98-SA approved the Supplemental Security Standards for Hazardous Work, restoring coverage for employed workers who worked in companies doing the activities listed in Annex 5 of Regulation Modernization Act Health and Social Security, Supreme Decree No. 009-97-SA. Chapter
III of the Supplemental Security Standards for Hazardous Work, notes that the financial benefits provided are: a) survivors' pensions; b) disability pension, and c) funeral expenses. Its regulation is evidence that the disability pension is the equivalent of the pension benefit for incapacity for work which was granted by Decree Law No. 18846; and that the terms "temporary disability", "permanent partial disability" and "total disability" have been replaced by temporary disability, permanent partial disability and permanent total disability, to define and cover the same way, the risk of inability to work.
In this regard, Article 18.2.1 of the Supreme Decree N º 003-98-SA defines permanent partial disability and decreased work capacity at a rate equal to or above 50% but less than 2 / 3 (66.66%), reason for which corresponds a lifetime monthly disability pension equivalent to 50% of the monthly wage. In contrast, Article 18.2.2 states that suffers from permanent total disability who is reduced in its ability to work on a permanent basis at a rate equal to or greater than 66.66%, in which case the lifetime monthly disability pension is equal to 70% of the monthly salary of the insured, equivalent the average insurable earnings for the 12 months preceding the accident, meaning the accident or occupational disease suffered by the insured.
Law No. 26790 and Supreme Decree No. 003-98-SA
Disability Economic Benefit Levels
1. Proportional temporary accommodation
2. 2.1 Partial Permanent
50% to 66.66%
pension of 50% (*)
+ 2.2 Total of 66.66%
pension of 80% (*)
need help from another person
Lifetime Pension 100% (*)
(*) The pension Invalidity grant generated by accident or occupational disease that causes permanent disability for work.
7. It is pertinent to emphasize that the National Pension System, regulated by Decree Law No. 19990, covers the risks of retirement and disability, and these grants pension only after the insured stating meet the minimum requirements for your enjoyment; and disability in cases where this is not the result of occupational accidents and occupational diseases covered by Decree Law No. 18846; is, which is scheduled for any impairment of physical or mental incapacity to produce for workers, employment in not performing their jobs at risk as long as the insured is found contributing. In both cases the main source of funding of future contingencies are mainly contributions from the worker and the employer, as the system is based on the principle of solidarity.
In contrast, the lifetime pension annuity-before-is based on compulsory insurance contracted by the employer, this being the beneficiary of the productive force deployed by the workers, in order that those who develop their work in conditions risk, are not in distress in the event of an accident at work or contracting an occupational diseases provided in its regulations, affecting their health by decreasing their working capacity.
8. Therefore, the benefits granted by the National Pension System of Decree Law No. 19990 are funded by mandatory contributions from workers to meet future contingencies of retirement or disability, while provided by the Supplemental Security Working Risk-before Accident Insurance and Occupational Diseases "from the insurance taken out by the employer's expense account and, in order to cover the contingency of a possible incapacity for work in hazardous conditions.
9. Since the benefits are financed from different sources and independent se encuentran previstas para cubrir riesgos y contingencias diferentes, se concluye que el riesgo de jubilación cubierto por el Sistema Nacional de Pensiones y los otros regímenes previsionales especiales concordantes con este, es independiente del riesgo de invalidez por incapacidad laboral producida por accidentes de trabajo o enfermedades profesionales, regulada actualmente por el Seguro Complementario de Trabajo de Riesgo Obligatorio, al punto tal que no es incompatible percibir simultáneamente una pensión de jubilación del Sistema Nacional de Pensiones y una pensión vitalicia (antes renta vitalicia) del Seguro Complementario de Trabajo de Riesgo.
La enfermedad profesional de neumoconiosis
10. Debe precisarse which means that occupational disease contracted by exposure to risk factors arising from work activity, which causes inability to perform normal duties of work.
11. On the other hand, pneumoconiosis (silicosis) is an occupational disease defined as a chronic respiratory condition, progressive, degenerative and incurable, which has four stages of evolution and is produced by the inhalation, retention and pulmonary reaction to various mineral dust, especially crystalline silica for prolonged periods. The most common functional disorder of the disease is the ventilatory defect resulting from the formation permanent scarring of the lungs, which causes loss of elasticity, requiring a greater effort to breathe. Diagnosed with a chest radiograph showing the typical pattern characteristic scars and nodules. Described in response to both the International Labour Organization and the World Health Organization has issued guidelines for the diagnosis, prevention and treatment.
12. The radiographic classification of pneumoconiosis International Labour Organization (ILO), Edition 1980, establishes the diagnosis of the disease into four categories or stages of evolution from the reading of chest radiographs: ONE (1 / 1 and 1 / 2), DOS (2 / 1, 2 / 2 and 2 / 3), THREE (3 / 2, 3 / 3 and 3 +) and Four (A, B and C). Parallel to this classification and in accordance with clinical signs of pneumoconiosis (silicosis) is classified, in turn, in simple (first stage), accelerated (second stage), advanced (third stage) and acute (fourth stage). Pneumoconiosis
Stages of evolution
Rating Rating Radiological Evolution
First stage 1 / 1 - 1 / 2
Simple
Second stage 2 / 1 - 2 / 2 - 2 / 3
Accelerated
Third stage
3 / 2 - 3 / 3 - 3 +
Advanced
Fourth Stage A - B - C
Acute
13. Although doctors can not predict the demonstration, development and evolution of this occupational disease, as may occur after a short time of exposure to inorganic dust, or many years after that, its origin (contingency) is indeed uniquely determined and direct in all cases, in the course of work activity, as well as the irreversible and progressive degeneration of the health of those who suffer this disease.
14. It is therefore concluded that the occupational disease of pneumoconiosis (Silicosis) causes permanent disability, being irreversible, degenerative, and at the time of its manifestation and diagnosis, disability may be partial or total, depending on the degree of evolution diagnosed occupational medical evaluation. Reset
amount of income or annuity
15. Article 18.2 of the Supreme Decree N º 003-98-SA, on Supplemental Security Standards for Hazardous Work, notes that the pension paid to the insured that corresponds to the degree of incapacity for work, the time of granting the benefit .
16. From a literal reading of that article might conclude that annuity you are entitled to the insured would be invariably fixed with respect to the degree of incapacity determined at time of application for benefits, awarding 50% or 70% of the monthly salary, whether it be permanent disability or total respectively. However, inasmuch as Article 27.6 of the same rule provides for the adjustment of pensions for disability of a permanent nature, in whole or in part, by reducing the level of disability, a contrario, it is valid to infer that necessary adjustment of the amount of lifetime disability pension is proven to increase the degree of disability of the insured. This assertion is based on:
a) The irrelevance of adjustment would distort the essence of insurance, which is designed to cover the inability to work, it is reasonable, therefore, that the coverage increases as the inability to work is emphasized.
b) The risk covered, the product unfit for work accidents or occupational diseases, is not static nor is exhausted, in all cases, at the time the incident occurs or is manifested the disease.
c) There are accidents, and especially diseases that produce degenerative progression of incapacity and incurable, as pneumoconiosis (silicosis).
13. Therefore, the Court considers that, in light of universal and progressive right to social security, recognized in article 10 of the current Constitution, the adjustment of pensions under Supreme Decree No. 003-98-SA should be interpreted extensively, for the benefit of the insured, to protect those that demonstrate the increase in disability which may generate incapacity, permanent partial disability to permanent total disability.
Consequently, in those cases shall provide for the increase in annuity (before annuity), 50% to 70% of the monthly salary specified in Article 18.2 of the Decree Supreme, and up to 100% of it, if he suffers from permanent total disability indispensably require the help of another person to move or to perform the essential functions for life, as indicated by the second paragraph of Article 18.2.2. the same standard.
Supreme Decree No. 003-98-SA
LIFETIME MONTHLY DISABILITY PENSION
Permanent Disability Rating Disability
% of "monthly salary" PARTIAL
50% to 50% 66.5%
TOTAL
66.6% to over 70%
100% (needs help of another person)
100%
14. In this case, the labor certification issued by the Center Empresa Minera del Peru SA (Centromin Peru), certifying that the applicant worked as a laborer in the Production Unit La Oroya, from October 31, 1961 until January 31, 1978, and the medical examination at the Institute of Occupational Health Abadia Alberto Hurtado Ministry of Health, dated July 9, 2002, which suffers from pneumoconiosis (silicosis) in the second stage of evolution (2 / 1 ), in accordance with the scale of radiographic profusion of radiographic classification established in the International Pneumoconiosis of the International Labour Organization (ILO), 1980 edition.
15. According to Articles 191 and following of the Civil Procedure Code, an extra application for constitutional processes, the occupational medical-practice management of Environmental Health - Occupational Health, Ministry of Health, is sufficient evidence proving the disease professional who has the appellant, pursuant to Supreme Resolution No. 014-93-TR, published on August 28, 1993, which contains the guidelines of the International Classification of the ILO Radiographic Assessment and Diagnosis of Pneumoconiosis, requiring the applicant immediate priority, so certification is not required by the Medical Evaluation of Disability EsSalud.
16. In the aforementioned medical examination stated in page 20, recommends the application of existing laws on occupational disease, but it was found that the document has not been indicated the degree of work disability of the plaintiff, pursuant to the standards listed in the previous basis and the information contained in the instrumental procedure on pages 123 to 129, the Collegiate interpreted that in the absence of an explicit medical statement, pneumoconiosis (silicosis) in the first stage of evolution occurs, at least Permanent Partial Disability, and from the second stage of evolution, disability increases to more than 66.66%, generating a total permanent disability, thus defined both by Articles 18.2.1 and 18.2.2. Supreme Decree N º 003-98-SA Standards Supplemental Security Risk.
In summary, pneumoconiosis results in permanent disability, partial or total, as detailed below: Stages of evolution
Permanent Disability Rating Disability Employment
PARTIAL
First stage of not less than 50% to 66.65 % Second stage
TOTAL not less than 66.66%
Third stage Fourth stage
17. It must be emphasized that the actor does not lose his rights as an employee having served in the same workplace during the period from February 1, 1978 and May 15, 1993, since it does not affect the risk that their health was exposed in their roles as workers, since, as has been stated, the symptoms of occupational disease have no preset development and evolution, but its origin is indeed determined in the period of occupational hazard, especially when the current legislation has abandoned the distinction between workers and employees, and has built specifically, to those who work as employees within the coverage of work accidents and occupational diseases.
18. The Constitutional Court in STC and 574-2003-AA/TC 956-2001-AA/TC, said that in cases of restoration of rights and in which the payment of the benefit is insignificant, in fairness, be applied Article 1236 of the Civil Code. They also point enforceable to be taken into account article 13 of the Constitution of 1979, which declared that "Social Security is intended to cover sickness, maternity, invalidity, unemployment, accident, old age, orphans and other contingency likely to be protected according to law ", which is consistent with the provisions of Article 10 ° of the Constitution of 1993.
19. Therefore, present noticeable that the plaintiff was protected during their working for the benefits of Decree Law No. 18846, belongs to enjoy the benefits are established by the standard replacement and receive permanent total disability pension of at least 66.66 %, in response to organic functional disability suffers as a result of pneumoconiosis (silicosis) in the second stage of evolution.
20. As to the date on which you build the right, the Court considers that the test was classified as surrogate appropriate medical examination submitted by the appellant, in the absence of delivery of the Disability Evaluation Commission, the contingency should be established from the date of the medical statement attesting to the existence of an occupational disease, because the benefit derived from evil just ails applicant, and from that date to be paid the lifetime pension annuity-before-in accordance with the provisions of Article 19 of Supreme Decree N º 003-98-SA.
21. Therefore, having been established violation of the rights to social security and free access to health and pension benefits, enshrined in Articles 10 ° and 11 ° of the current Constitution of Peru, located corresponding order that granted the plaintiff a disability pension for life, and to pay rebates accrued from the July 9, 2002.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED 1. Upheld the complaint.
2. Orders the defendant entity granted the appellant the lifetime disability pension for an occupational disease under the Law No. 26790 and its complementary and related, from the July 9, 2002, including accrued interest generated from that date, according to the fundamentals of this sentence.
published and notifíquese.
SS. Alva Orlandini
Bardelli Lartirigoyen
OJEDA GARCÍA GONZALES TAKES
VERGARA Gotelli
LANDA ARROYO
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