The High Court of the Canary Islands (TSJC) has dismissed the appeal of a woman who claimed to have a 75% disability rating, claiming illnesses such as fibromyalgia, chronic fatigue syndrome and multiple hypersensitivity syndrome. . Since the trial court had accepted a 19% rating, he appealed the sentence with the understanding that some of the pathology was not described in detail in the forensic medical report that served as the basis for the contested sentencing decision.
The women understood that “the analysis and comparative evaluation of the experts’ reports was not done to determine which one could most accurately solve the problem.” He understands that the coroner did not take into account the assessment of fibromyalgia and chronic fatigue syndrome and did not give a score, and the Catalan High School, which found the proportion of disability due to chronic fatigue to be 65%, said: He gave examples of court decisions. Fatigue in the same situation as you. He also criticized the fact that multiple chemical sensitivity syndrome was left unassessed, noting that the standards themselves provide the tools needed on that scale.
The TSJC Social Chamber believes that it is not possible to point out that an expert’s report is incomplete, inaccurate or lacks rigor, and that its assessment should be respected. , understand that the assessment of disability corresponds to uniform technical standards established for weighing scales. However, the ruling states that although fibromyalgia is not considered a disabling disease, it does address “each of the defects and dysfunctions that rheumatic pathology causes in the various organs, systems, or devices of the affected individual.” “There are no legal obstacles that could pose a problem.” Because “it is not the clinical diagnosis that is of value, but the severity of the disease outcome.”
However, the TSJC decided to dismiss the appeal through a royal decree establishing the procedure for determining disability. “If legislators understood that medical conditions such as fibromyalgia, chronic fatigue syndrome, or multiple chemical sensitivity syndrome should be included in the scale to be independently evaluated; It is logical to think that he would not have missed the opportunity to promulgate the law.” A new evaluation system has been provided, but we do not believe that it is up to us to do so. It was. ”
Although the Chamber recognizes that the disease presented by the plaintiffs primarily occurs in women, the Chamber believes that “the duty to judge from a gender perspective is not protected and therefore, in this situation, it is not appropriate to dismiss the appeal.” It is hardly possible to derive a solution different from the one we are presenting with the “interpretation.” “Anti-legal”. He added that decisions of other courts, whose standards he respects even if he does not share them, “do not constitute jurisprudence and therefore have merely illustrative value.”
Gloria Poyatos recalls ‘historic neglect of women’s health’
Judge Gloria Poyatos agreed with the decision, considering that “the appeal filed by the plaintiff should have been upheld and the lower court’s judgment should have been reversed, recognizing that the plaintiff was 77% disabled.” expressed an opposing opinion. The impact of physical and psychological conditions should have been evaluated rather than the Grade II fibromyalgia, Grade II Chronic Fatigue Syndrome, and Grade IV multiple chemical sensitizations affecting Plaintiff. ”
Mr Poyatos said Annex I of the Royal Decree 1971/1999 applied in this case, which “unlike many other diseases, assesses the physical and neurological effects and pain derived from previous illnesses”. Remembering that there is no way, they are not even mentioned.” “These diseases have a disproportionate negative impact on the genders, as it is primarily women who suffer from them,” he summarizes. And because of this, he added, “we are faced with a loophole in the law, as there is no legal approach for the assessment of these diseases, as they have a unique impact.”
To the judge, this is a regulatory gap that is “unfortunately” consistent with “historic legislative and scientific neglect of women’s health.” This makes it difficult to identify rates of disability and access economic, social and labor benefits, and is “considered indirect systemic discrimination on the basis of gender,” he asserted. do. In some cases, the majority is overwhelming. ”
Recall that in 2011 the Department for Health, Social Policy and Equalities confirmed that 81.5% of people living with fibromyalgia are women. The same thing happens with multiple chemical sensitivities. Poyatos argues that the majority decision of the court has opted for a strict doctrine, omitting the application of gender and disability perspectives, violating the principle of “due diligence” and, with respect to the fundamental rights protected, “professing”.・I argue that the principle of “persona” should be given priority.
The judges emphasized that the lack of reference to these feminizing diseases “constitutes indirect discrimination and therefore violates the Directive on the progressive application of the principle of equal treatment of men and women in social security matters.” “The recognition of statistical evidence as a demonstrative mechanism of sex discrimination is recognized by the CJEU,” he clarifies. Similarly, he believes that disability perspectives need to be integrated as well.
“With regard to the pathology of fibromyalgia, the following points should be noted as it is a chronic disease for which the diagnosis must be established by clinical symptoms, starting from the difficulty of medical evaluation and determination of its functional impact. “It’s very important to pay. The severity is the same.” Generalized bone and joint pain, which can be measured through INT (18 points corresponding to the most sensitive areas of the body), gives a sense of which pain is most common and which defects should be taken into account to determine the pain. Please keep in mind that “translated into a change in Severity. ”
The International Association for the Study of Pain defines fibromyalgia pain as “extremely fatiguing,” “miserable,” “severe,” or “indescribable,” and can include abdominal pain, headaches, muscle stiffness, Symptoms include fatigue and unrefreshing sleep. Among other things, this disease is very commonly associated with reactive psychosis, basically anxiety and depression. Therefore, “this disease, given its clinical features that cannot be objectified by diagnostic tests, leaves people suffering from this disease vulnerable to further feelings of stigma and stigma-related deterioration of personal worth and professional credibility.” associated with laziness and “feminine” weakness.
“It is very likely that the disproportionate impact on women associated with this disease is the direct cause of the disease’s historical devaluation, and that concerns about the trustworthiness of those with the disease have contributed to the perceived moral inferiority of women. It could be related to stereotypes,” Poyatos added. Empirical analysis shows that we are faced with a pathology of women’s prevalence, which affects their social devaluation and legal invisibility as a disease. On the other hand, androcentrism does not help health research that has taken men as a reference model, and as a result there is a significant ‘ignorance’ in the field of knowledge about women’s health.
Similarly, he explains, “Chronic fatigue syndrome is a complex neuroinflammatory disease that can severely impact a patient’s functionality and quality of life.” Additionally, extreme physical fatigue that is not reduced or reversed by rest is associated with other common symptoms such as neurocognitive problems with concentration and memory, pain, migraines, and sleep disturbances. These statements were also proven in the final judgment in the plaintiff’s case. ”
Multiple susceptibility “has a clear impact on the quality of life and the psychosocial domain. Activities of daily living (individual autonomy) become subject to challenges that make it difficult to interact with the outside world, such as using public transport. ” and added that there are various questionnaires to assess the influence of environmental factors on quality of life, including: short form health survey Assess health-related quality of life. “In our case, no impact assessment questionnaires are used,” he points out.
“The forensic expert’s report on which the lower court’s decision is based has obvious errors in its assessment, as it omits the assessment of the three listed diseases, and the listed gender We can conclude that it is contaminated by bias,” Poyatos said. emphasized, adding: “If we understand the implicit assessment in the aforementioned report to be 0% for disability purposes, it is clear that the assessment of the limitations associated with the loss of private life and disability is invalid.” . “The plaintiff’s functionality contradicts what is already known even about her daily life in the factual statement of the final sentence mentioned,” he emphasizes.
Secret voting will also be held in 2022
This reasoning of Poyatos Already used in another sentence in 2022The TSJC also rejected an appeal filed by a 65-year-old woman who has been diagnosed with fibromyalgia since 2012. The woman, who is also a victim of gender-based violence, requested that her disability level exceed 65% (she is now 42 years old). %) To be able to claim a non-contributory pension. Next, Gloria Poyatos emphasized that fibromyalgia should be evaluated independently and not “mixed with other diseases.”
He argued that the disease’s absence from the 1999 Royal Decree meant “ignoring that, once it reaches a certain severity, it has a significant impact on the abilities of people with disabilities.” did. It added that the judgment did not incorporate a human rights perspective (regarding disability) or a gender perspective to avoid indirect discrimination on the basis of sex.
