The court has ruled in favor of CCOO and in two sentences, which are now final, the death due to heart attack of a waiter from Cuenca has been declared a work accident minutes after receiving the dismissal letter that his company sent to his home, where He was on sick leave. The rulings of the Social Court number 1 of Cuenca uphold the demands presented by CCOO on behalf of the deceased's widow and two orphaned minors and declare that his death "was caused by a professional contingency (work accident)"; and not due to the "common contingency (common illness)" initially established by the National Social Security Institute (INSS) as a determinant of death, the union reported in a statement.
CCOO points out that the judicial recognition of the work-related origin of the cause of this worker's death entails important economic improvements for the deceased's relatives, who will see their widow's and orphan's pensions increased and will have the right to receive the legal compensation provided for in both the regulations on Social Security as in the collective agreement that was applicable to the deceased, the Hospitality Agreement of the province of Cuenca. Part of these improvements will be borne by the mutual insurance company of the restaurant where the deceased worked and had professional contingencies arranged. Others correspond to the company (or, where appropriate, its insurer), which, at the time, also assumed the inadmissibility of the dismissal requested by CCOO, with the corresponding compensation responsibilities.
The magistrate who signed the sentences explains in the proven facts that the deceased waiter was at home on November 17, 2018, on sick leave due to a rib fracture caused by a fall, when "at 10:14 a.m. his company "Reach your dismissal letter to the worker's home by burofax."
"After reading it, he suffered an acute myocardial infarction, as a result of which he died a few minutes later, without the medical services that had immediately arrived, notified by his wife, being able to do anything to save his life." The mobile ICU dispatched to answer the call for help could only certify the death, stating on the death certificate that the death occurred "at ten hours thirty minutes."
In December 2018, the provincial management of the INSS approved a Widow's Pension benefit in favor of the same, in the amount of 657.42 euros (52% of the regulatory base of the deceased worker, 1,204.06 euros), plus 31. 31 euros maternity supplement, establishing common illness as the determining contingency of the husband's death.
Simultaneously, it approved another Orphan's Pension benefit for each of the two orphans, in the amount of 240.81 euros, corresponding to applying 20% to the regulatory base of 1,204.06 euros, also establishing itself as a determining contingency of the death of the father. that of common disease.
On behalf of both the widow and the orphans, CCOO filed a claim with the INSS requesting that it be recognized that the cause of death was a work accident; claim that, at the direction of the INSS, was also sent to the company where the deceased worked and to the mutual insurance company with which he had arranged coverage for professional contingencies, without obtaining a response from any of them.
For its part, the Labor and Social Security Inspection issued a report, already in October 2020, stating that "since the cardiovascular accident did not occur during the day and in the workplace, the presumption of employment does not operate (... .). This is why the link between the cardiovascular accident and your work must be proven."
Consequently, CCOO had to go to the Social Court of Cuenca and present the corresponding demands, on behalf of the widow and orphans, to demand recognition of the professional contingency as a determinant of the worker's death.
Initially, the Cuenca court accepted the "exception due to prescription" formulated by the company and dismissed the claims "without going into the substance of the matter." CCOO then appealed to the TSJCM, which declared this first ruling null and void, indicating that the prescription should not have been accepted and returned the proceedings to the court "so that a new ruling can be issued in which the substance of the claims can be heard and resolved."
Having therefore thoroughly analyzed the issue, the Social Judge of Cuenca has issued new rulings, now final, in which he recalls the abundant jurisprudential doctrine on the legal configuration of the 'work accident'; and especially about those that must be considered as such without occurring during work hours or in the workplace, but in which there is a "causal link" that directly connects the "work ingredient" with the accident, of which It is triggering.
"In the present case," the ruling explains, "it is necessary to conclude that the 'triggering factor' of the cardiac crisis that led to the death of the worker was one of an eminently labor nature, such as the dismissal letter that the company sent to his private home and the actor is on medical leave, given the magnitude of its content and meaning in his work life, without another different agent being able to be identified as the cause of death given the immediacy from the reading of the extinctive letter to the heart attack."
"Nothing prevents reaching such a conclusion from the fact that the actor was not at work time and place at the time of suffering the heart attack, but rather was on sick leave at his private home, since it was the company itself that, on its own initiative and without waiting for his return to work, decided to introduce into the worker's private sphere a work element such as the communication of the termination of the employment relationship, already infecting with said communication of inevitable work connotation any physical reaction and consequences that the actor could suffer as a result. of said employer action", concludes the magistrate. For this reason, he declares in his rulings that "his death was caused by a work accident, with the resulting legal and economic consequences."
