This is a special post which includes an auto-translation of the recent legal decision in the High Court of Madrid, which found in favour of an EHS sufferer, an ex-employee at Ericsson.
I’ll replace this when a proper English translation is available, and in the meantime, the translated article on Towards Better Health provides a more readable summary of this judgement.
There are some links to further media coverage below the auto-translated ruling.
High Court of Madrid Ruling Recognizes “Electrosensitivity” as Grounds for Total Permanent Disability – Towards Better Health, 4th August 2016
http://mieuxprevenir.blogspot.co.uk/2016/08/spain-high-court-of-madrid-ruling.html
Address: CI General Martinez Campos, 27, Plant 2-28010
Telephone: 914931969
Fax: 914931957
NIG: 28.079.00.4-2014 / 0044087
Supplication appeal procedure 327/2016-s
ORIGIN:
Labour Court No. 11 of Madrid Social security 1011/2014
Matter: Permanent disability
Judgment number: 588/2016
Ilmos. Mr
Mr./Mrs.
Mr./Mrs.
Mr./Mrs ..
In Madrid on 6 July two thousand and sixteen having seen in resource supplication the autos present Section 2 of the Social Chamber of the DC Superior Court Justice composed by Ilmos. Messrs. Cited, according to the provisions made in the Article 117.1 of the Spanish Constitution,
ON BEHALF OF S.M. THE KING
AND BY THE AUTHORITY THAT THIS GIVES
SPANISH VILLAGE
He has issued the following
JUDGMENT
In the appeal for reversal 327/2016, formalized by the / the LETRADO Mr./Mrs.
on behalf of Mr./Mrs. []
Against the judgment dated 30.12.2015 issued by the Court de lo Social No 11 de Madrid in their cars Social security number 1011/2014, followed at Mr./Mrs instance. [] Versus INSTITUTE NATIONAL TREASURY GENERAL SOCIAL SECURITY ANDSAFETY SOCIAL, in reclamation permanent disability. Judge-Rapporteur being the /the llmo./Ilma. Mr. Mrs. D./Dfla [] and deducted from the actions gotten the following
FACTUAL BACKGROUND
FIRST: As stated in the autos, demand was presented by that part plaintiff against thatdefendant. It is turned for knowledge and indicated prosecution the Labour Court, which, following the relevant procedural acts processing and after conclusion of appropriate acts of oral proceedings in which they were definitely set the respective positions of the parties, issued the sentence referenced above.
SECOND: In the judgment under appeal in supplication the following facts were recorded as expressly declared proven:
FIRST D. [] born the day 01.27.1969 and document Affiliate Social Security No []initiated a sick leave for temporary disability due to common illnesses as of 02/07/2012.
SECOND.- The actor worked for the company ERICSON, flaunting the professional category Telecommunications Engineer; It is its regulatory base of 2.812.33 € monthly.(Undisputed fact)
THIRD.- case file permanent disability plaintiff, after examination and recognitionthereof by the evaluating physician, medical summary report dated 05.20.2014 was issued, in which, prior diagnosis of “anxiety-depressive disorder with predominance ofirritability and difficulty controlling impulses. Syndrome of electrosensitivity (EMS),multiple chemical sensitivity syndrome (SOM) of irritable bowel syndrome, dry mucous membranes “, regarding the organizational and functional limitations, reads as follows:
“Anxiety-depressive disorder prevalence of irritability and difficulty with for control impulses. irritable bowel syndrome, dry mucous membranes, without sequelae defmitivas.
It is not possible to draw definite functional limitations syndrome electrosensitivity (EHS) and multiple chemical sensitivity (MCS) syndrome on the basis of consensual scientific information and that can be implemented in the considerations of WHO and Consensus Document on Chemical Hypersensitivity Multiple the Ministry for Health, Social Policy and Equality 2011. they stresses that “there is little scientific evidence to support the possible existence of cases of hypersensitivity to electromagnetic fields” (wHO) and “heterogeneity and vagueness of symptoms and the lack of agreement on a profile empirically validated, favored doubts about accepting MCS as a disease entity with a specific underlying etiology “(Ministry of Health)”; finally concluding, that report, that “it is not possible to establish permanent sequelae, not a cause-effect franca of symptoms and signs with exposure to the agents referred to not having scientific evidence of the experimental method”(Folios 20 to 25 and 40 to 43)
FOURTH.- Upon issuance of that medical summary report by the Task Disability Assessment (EVI) proposal dated 06/06/2014 issued an opinion that determined thefollowing clinical picture residual: “anxiety-depressive disorder Irritability DOMINANCEWITH DIFFICULTY AND CONTROL IMPULSE. SYNDROME electrosensitivity (EHS),SYNDROME MULTIPLE CHEMICAL SENSITIVITY (SOM). Irritable bowel. DRY Mucous’ ‘is the non-qualification of the worker as permanently disabled proposing not to submit anatomical or functional reductions that reduce or remove their working capacity. (Folio 39)
FIFTH.- By INSS decision was given as of 06/06/2014 for which she remembered actordeny the provision of permanent disability for not meeting injuries suffers a sufficient degree of decrease in their ability to work, to be constitutive of permanent disability.(Folio 31)
SIX.- against that decision of the INSS, the plaintiff made a previous claim, which was dismissed. (Folios 58 to 64)
THIRD: In the judgment under appeal in supplication the following judgment was rendered or part: “THAT dismissing the lawsuit filed by D. [] FACING THE NATIONAL INSTITUTE OF SOCIAL SECURITY (INSS) AND FACING THE GENERALTREASURY OF THE SOCIAL SECURITY (TGSS), IN CLAIMS ON PERMANENT DISABILITY, SHOULD I acquit THE CLAIMS OF ENTITIES co-defendants made against him ”
FOURTH: Facing then appealed that judgment was announced by the applicant,Mr./Mrs part. [ ], formalizing it later; such an action was not contested by the counterparty.
FIFTH: Elevated by the Labour Court reference the main case, together with the separate then appealed piece, this Social Chamber, had the same entry in this section,dictating the corresponding and subsequent providence for processing fit.
SIXTH: Appointed Judge-Rapporteur, the clearance of the cars were available for the same knowledge and study, indicating the 07.06.2016 day for voting acts and failure.
In view of the above factual background, the following are made by this section Room
THE LAW
FIRST Against the judgment of the Labour Court No. 11 of the city in car no. 1O11 / 2014 has brought Counsel then appealed the claimant under the provisions of Article 193 b) and c) of the two groups claiming LRJS grounds of appeal:
In the first, asks:
a) The second revision of the proven fact giving the following relationship:
“The actor worked for the company ERICSON, flaunting the professional categoryTelecommunications Engineer, and its regulatory base of 2.812.33 € monthly (notdisputed fact).
The tasks in their profession are: analyze, develop, develop and implement test casessoftware and hardware: coordinate, lead and manage test procedure: check the configuration and integration of a node, a network or system: scope of these activitiescould include: introduction of software, software expansion level, expansion of software(functionality and capacity) and migration of the same: the ultimate goal is to deliver to the client node, network or system.
These activities are carried out both offices Ericsson (office area, area models) andcustomer premises (equipment rooms and offices) and in constant daily contact with computers in an environment where there are electromagnetic fields, mobile connections and wireless radio. ”
b) The addition of a new seventh ordinal proven fact with the following wording:
“It is considered by the Prevention Service of the company that the applicant is particularly sensitive person and that once the possibilities of adaptation to other activities and mode of work according to the medical examination and medical reportsanalyzed. IS NOT SUITABLE for perform their profession.
For that reason and given the impossibility of reassignment of the employee to another job in which electromagnetic fields affecting their health are not present, the company proceeds to end the employment relationship that united them because of theineptitude develop their work, given the existence of a clear situation of disability. ”
c) The revision of the fourth proven fact giving the following wording:”Upon issuance of the said medical summary report by the Disability Assessment Team (EVI) opinion dated 06/06/2014 proposal in which determined the following clinical residual was issued:” anxiety-depressive disorder predominating irritability and difficulty impulse control, electrosensitivity syndrome (EHS), Multiple Chemical Sensitivity syndrome (MCS), Irritable bowel syndrome, dry mucous” non-qualifying worked as permanently disabled by not presenting anatomical or reductions functional proposed that diminish or nullify its labor capacity (Folio 39).
According to expert report Hospital of Guadalajara. “In the presence of this exposure to electromagnetic fields, such as that found in the workplace, appear in the patient’s symptoms of hypersensitivity especially relating to (headache, tinnitus, insomnia and other sleep disorders, fatigue and fatigability, changes nervous system mood, nervousness, irritability or aggressiveness, impaired concentration and short-term memory, etc.), and to improve away from their exposure. ”
In the second group of reasons for appeal alleges infringement of Article 137.5 of the General Social Security Law; alternatively point 4 of the same article; and the jurisprudential doctrine cites in its application.
SECOND.- interested by the applicant to the fact proved second of the judgment of theCourt is inconsequential to the decision of the case because the content obligational asdefined in the professional category that is what must be evaluated and not a specific job to determine whether or not the worker is in situation total permanent disability forusual occupation. Which prevents the first estimated plea because it already hasproven in the professional category second fact.
THIRD:- If you must be estimated the addition of the new fact that seventh ordinal interested in its application because it refers to factual information susceptible to failuretranscend the dispute whose purpose is to determine the capacity or incapacity of the actor for the performance of work.
FOURTH.- modification interesting for the proven fact four of the judgment of Courtconsists of the addition of a second paragraph to its literal content that alludes the report of the Hospital of Guadalajara. This expert report in the case file and refers to circumstances or susceptible pathologies arise when the worker is exposed to electromagnetic fields. What it is implicitly included in saying that suffering Electrosensitivity SYNDROME (SQM), making it unnecessary to add to mode directlyderived greater detail the consequences of such pathology they are unwritten and included to state that suffers. What makes unnecessary by not estimable this ground ofappeal.
FIFTH.- Once resolved define the course of application of the rules regulating substantive legal incapacity. ie Articles 136 and 137 of the LGSS, the resulting form as described above. in view thereof it is reasonably accredited total permanent disability of the claimant for normal profession Telecommunications engineer because of chemical sensitivity syndrome or suffering Electromagnetic hypersensitivity to the Spanish Ministry of Health has called on its version of the international classification of ICD-9-CM disease within the group no specific allergies (code 995.3). Allergy that causes the sufferer in loss induced tolerance, for most recurrent outbreaks, the RF pollution, cordless phones, mobile phone antennas, WIFI, forcing suffers a quine minimize its exposition in the home and work environments and avoid places with electromagnetic pollution. These circumstances leading to the reasonable decision to declare the applicant in situation of total permanent disability for usual occupation Engineer Telecommunications derived from common disease entitled to receive the benefit economiea in corresponding application of the provisions of Article 137.4 of the General Social Security Law.
SIXTH.-. If, as it has been argued above. the actor is unable to work in environments with electromagnetic pollution, this situation does not occur in all types of environmentsand places, so if you can work in so-called “white zones” they do not have that kind ofcontamination; and as for the chemical sensitivity syndrome who also suffers frommultiple, as argued in the legal basis Fourth judgment of the Court “not possible todraw definite consequences”, and this lack of permanent limitations prevents estimateits claim to be declared for absolute permanent disability pursuant to the provisions of Article 136.1 of the LGSS.
HAVING SEEN the previous rules and other general application,
FAILED
Estimating that partly and partly dismissing the appeal for reversal Counsel filed by theapplicant against the judgment of the Labour Court Social n ° 11 of the city in carsnum. 1011/2014, we must reverse and reverse leaving void the contested decision and, instead, resolution estimating the alternative claim contained in the applicationmade by Mr [] against INSS and TGSS, we must declare and declare that the actor is in situation total permanent disability for usual occupation Engineer Telecommunications derived from common disease entitled to receive the benefit economic equivalent to 55% of their base salary of € 2.812,33. with economic effects from the day 20.05. 2014; condemning the co-defendants Entities subscribe with improvements that are legally due.
WITHOUT COSTAS.
Merge the original of this judgment, by this order, the Book of Sentences of this SectionRoom.
Certifications issued of this statement for binding separate piece or roll supination, which will be filed in this Court, and the main cars.
Notice is this judgment to the parties and to the Office of the Court Superior of Justice.
Some Spanish articles on the case, with English auto-translations afterwardsLa Vanguardia, 2nd August 2016
Un ‘teleco’ con electrosensibilidad logra la incapacidad para trabajar entre wifis
A ‘teleco’ electrosensitivity achieved with the inability to work between wifis
Heraldo, 2nd August 2016
Un ingeniero de telecomunicaciones con electrosensibilidad logra la incapacidad laboral
A telecommunications engineer with electrosensitivity achieves incapacity
El Pais, 2nd August 2016
“Sufro electrosensibilidad y mi calidad de vida es vivir aislado”
http://ccaa.elpais.com/ccaa/2016/08/02/madrid/1470150997_885665.html
“I Suffer electrosensitivity and my quality of life is to live isolated”
Noticias Juridicas, 3rd August 2016
Una sentencia considera por primera vez la “electrosensibilidad” como causa de incapacidad permanente total
A statement considers first the “electrosensitivity” as grounds for total permanent disability
