Revision of a pension due as a result of an accident at work
RULING Nº 161/2009
25 of March of 2009
The rule that imposes a ten-year preclusive deadline counting from the moment when the original pension was set, for the revision of a pension owed to the victim of a work-related accident, in cases where a court has ordered the entity with the applicable liability to provide a surgical intervention beyond that deadline and the victim then makes a claim on the grounds of a worsening in his clinical situation due to that new intervention, is unconstitutional because it violates the constitutional right to fair reparation.
Following an accident at work that led to a permanent partial (32%) disability, in May 1972 the victim and an insurance company entered into a duly homologated agreement. Almost twenty-three years later, the victim asked that the insurance company pay for the cost of a surgical intervention, to include the installation of an intra ocular lens that might restore sight in his left eye. Although the insurer had invoked the fact that the ten-year deadline that had been set for requests to review disability had passed – something which would have eliminated the grounds for the victim’s request – it was decided that the situation did not entail a revision of the victim’s disability or pension, but rather one which was included within the framework of the right to monetary reparation provided for by another rule, and which was not subject to any prescriptive deadline. The insurer eventually fulfilled the victim’s request with resort to its own medical services, “with the proviso that subsequently, and depending on the results of the surgery, it might request a review of the pension”. Two surgical interventions took place.
In March 2008 the victim asked for a review examination due to a worsening of his clinical situation. The insurer opposed this request on the grounds that more than ten years had passed since the pension was set. The court ruled that under the applicable legislation, a review examination could only be requested within ten years of the date on which the pension is set, but that the impossibility of revising the pension prevents a victim from concretely receiving fair reparation in the event that he can show his clinical situation has deteriorated. The court considered that this breached the victim’s right to fair reparation, and therefore held the rule unconstitutional.
The appeal that led to the present Constitutional Court Ruling was brought against that court decision, and was lodged by the representative of the Public Prosecutors’ Office (PPO) at the Oporto Labour Court. The PPO argued that in a case where, on the grounds of an alleged supervening worsening in his injuries, the victim of a work-related accident asks for the revision of a pension he is receiving due to that accident, and there has been no update of the degree of his disability in the more than twenty years since the date on which the pension was originally set, the fact that the law establishes a preclusive deadline of ten years for the revision of a pension payable to the victim of an accident at work does not injure either the principle of equality or the victim’s right to fair reparation.
The Constitutional Court considered that the issue in this appeal was not the constitutionality of the overall rules governing deadlines for the exercise of rights arising from accidents at work, but solely the imposition of time limits on the exercise of the right to the review of a disability and an ensuing revision of the pension that was awarded for that condition.
The law does not expressly lay down any specific prescriptive deadline for an application to review a disability, counting from the point in time at which a change therein becomes known. What it does establish are temporal conditions for the exercise of that right, both by fixing a preclusive deadline of ten years from the date on which the pension is set, and by limiting the frequency with which review requests can be made: once every six months in the first two years, and once a year thereafter.
The Court recognised that the situation before it in the present case possesses some special characteristics, which differentiate it from others that it had considered in the past.
In the present case, with the agreement of the parties, a court had already acknowledged in the past that despite the fact that more than a decade had gone by since the pension was set, there was a legal requirement for the insurer to pay for a surgical intervention designed to repair the damages incurred by the victim – an intervention which had become possible because medical techniques that had not existed at the time of the accident had since been developed.
The appearance of this new surgical intervention and the court’s decision to order it naturally negated the “presumption” that the clinical situation had stabilised – a presumption which, in previous decisions, the Constitutional Court had linked to the absence of any review of a disability after the aforementioned ten-year period. This means that the argument that the rule is not unconstitutional – because after ten years it would be normal for the victim’s clinical situation to have stabilised, and on the grounds of the need to protect the security of the legal position of the entity with the responsibility to make reparation for the damages derived from a work-related accident – is unsustainable.
A singular occurrence in the victim’s clinical situation undeniably negated the presumption that that situation had stabilised.
When the insurer agreed to pay for the surgical intervention, it immediately emphasised that it reserved the right that “subsequently, and depending on the results of the surgery, it might request a review of the pension”. On the one hand there can be no doubt that the reservation posed by the insurer was a valid one, given the hypothesis that if the intervention was successful the victim might completely recover his sight, and that this might lead not just to a reduction in the pension, but to the very extinction of the right thereto; but on the other, it must be considered equally valid that in the event the complications caused by the failure of a second intervention worsened the situation, the degree of disability should be revised even though the initial ten-year period had ended.
From the moment at which it was decided to provide the new surgery, the situation became unstable, which in turn negates the raison d’être of the argument that the legal solution in question is a reasonable one and is thus not unconstitutional. The new situation is closer to situations that become unstable due to pension revisions caused by acknowledged changes in the extent of the victim’s disability.
The decision was unanimous.