Johanis Mencowhose life changed in 2020 after an accident, finally celebrates a judicial triumph in his fight to have his fundamental rights recognized.
The triumph of an amputee player
Recently, the Real Santander exporter, through her attorney, lawyer Eduardo Ramírez, from Acolfutpro’s legal team, filed a guardianship action against AFP Protección SA, after said entity refused to classify the loss at the first opportunity. of Johanis’ work capacity, in response to the request filed on March 24 and taking into account that more than three years have passed since the accidentthat is, 1,080 days, far exceeding the 540 days to carry out the qualification.
On August 24, the First Municipal Criminal Court of Bucaramanga, with a function of guarantee control, issued the ruling in which it resolved to protect the fundamental right to social security that Johanis Menco enjoys and order AFP Protección SA to carry out the examination of loss of work capacity within a term of seven business dayscounted from the notification of the decision.
Within her considerations, the judge cited what was established in Judgment T-402 of 2022 as a jurisprudential postulate on the right to social security: […] “The lack of qualification of the PCL has repercussions on the guarantee of the plaintiff’s constitutional rights. Indeed, your right to social security is affected, since without the qualification you cannot start other procedures derived from the eventual condition of invalidity or disability that is ruled on. There is an affectation to due process, since an unjustified barrier is being imposed on the actor and an impossible burden to comply with to obtain the opinion.”
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Fundamental right to social security
In the specific case of Johanis, the judge considered that the AFP Protección violated her fundamental right to social security, since “it has breached its legal and jurisprudential duty to carry out – at the first opportunity – the opinion of loss of employment capacity to the plaintiff”. In addition, he criticized “His lack of effectiveness and immediacy in the case” and called on him “not to ignore the current situation of the plaintiff, who suffered an accident of common origin on June 28, 2020 and to date has multiple health complications physical and mental derived from it”.
The judge also rejected the arguments presented “regarding the term that the accused has to advance the classification of loss of work capacity, even more so when the Single Manual for the Qualification of the Loss of Labor and Occupational Capacity establishes that in any case the qualification must be carried out before 540 days after the accident occurred or the disease was diagnosed, a term that is also far exceeded”.
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*With information from Acolfutpro.
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