The High Court of Justice of Galicia (TSXG) has declared that a tendinitis in the shoulder of a Zara warehouse worker is a consequence of her work and, therefore, Mutua La Fraternidad Muprespa and not the National Institute of Social Security should be liable as it is not a common illness.
Judgement 1769/2023 of 4 April was handed down by the judges Carlos Villarino, Antonio J. García and Beatriz Rama.
The cause of the lawsuit arose when one of the workers began to suffer intense pain in her left shoulder 20 minutes into her working day. She was packing hanging garments to be sent out later and, as she was taking them down, she began to feel unwell.
The company issued an accident report stating that the overexertion had caused an occupational accident.
The Mutual Insurance Company carried out various tests and the results showed that she was suffering from calcific tendinitis, but informed her that the injury could not be considered as deriving from an occupational contingency due to its aetiology, so she was referred to the primary care doctor of the Public Health Service (SPS).
THE INSS DECLARED THE TEMPORARY INCAPACITY DUE TO AN ACCIDENT AT WORK.
Finally, the Provincial Directorate of the National Social Security Institute (INSS) declared that the employee’s temporary incapacity was due to an accident at work and held the Mutua Fraternidad Muprespa responsible.
The insurer sued the INSS and Zara, and the Social Court No. 2 of A Coruña dismissed the claim, for which reason it filed an appeal to the TSXG.
She requested the inclusion in the account of the proven facts that on the day she was seen at the medical services of the mutual insurance company, the worker told the doctor that she had been suffering from symptoms in her left shoulder for days. But the TSXG magistrates did not accept this allegation because the report issued stated that she had symptoms “for days of evolution” but did not clearly specify the exact date.
On the other hand, the Mutua argued that “the pathology of the temporary incapacity process was a common illness” because the pain “neither began nor worsened as a result of work”, which is why they requested that the first instance ruling be annulled.
This argument was also rejected because article 125.2 f) of the General Law on Social Security explains that an accident at work is considered to be “illnesses or defects, previously suffered by the worker, which are aggravated as a consequence of the injury constituting the accident”.
And in this case “it is accredited, in view of the proven facts, that the temporary incapacity began after the overexertion in time and place of work and also in the performance of work tasks likely to cause an aggravation of the pathology of the shoulder”. They therefore dismissed the plea and thus the appeal.
