The dynamics have been repeated for years in the Canarian Health Service (SCS). A nurse communicates her pregnancy at the service of occupational risk prevention of her hospital or her primary care management. This service prepares a generic risk report, the center confirms the “technical and objective impossibility” of changing their jobs and sends it to the Mutual accidents of the Canary Islands (Mac), an entity that since 2002 covers the professional contingencies of the statutory staff of the Canarian public health. The mutual denies the risk benefit during pregnancy until week 24. The sanitary resorts to justice and wins. Courts recognize the right to this benefit (100% of their regulatory base) throughout the gestation stage.
To date, that has been the usual succession of events for pregnant SCS nurses. One of them, however, has gone a step further and has achieved a pioneer sentence and, in the words of his lawyer, Fany Barreto, “exemplary.”
The titular magistrate of the Social Court 8 of Las Palmas de Gran Canaria has condemned the Canarian health service and the Mutual accidents of the Canary Islands to compensate the worker for two reasons. In the first place, due to a serious infraction in risk prevention, due to the lack of training and information to the worker, stolen exclusively to the public body. Secondly, due to the damages that this denial of the benefit caused to the toilet, which ended up causing decline due to an anxiety disorder. In this case, the judicial resolution attributes responsibility for both entities (the SCS and the mutual), which have already appealed that sentence.
The amounts of compensation amount to 9,831 for the early infraction (which assumes in its entirety the SCS), typified as serious, already 49,181 euros for the second (very serious), the amount of the latter that must be paid solidarily with both the public and mutual body in case the sentence acquires firmness. In total, therefore, 59,012 euros.
The judge affects his judgment the “preventive and deterrence” character of compensation for damage. Otherwise, the action of the mutual in these types of cases (in which it denies a benefit that is later recognized by sentence) “would have no consequence.”
The magistrate affects that the MAC “denied the benefit and clearly caused damage when the plaintiff (the nurse) passed to a situation of temporary disability due to anxiety derived from the entity’s refusal.” If the health had gone to work after that denial “it is obvious that there would have been a risk to their health and that of the fetus.”
The first sentence
The demanding nurse had chained temporary contracts in the Canarian health service since 2020. The last one, in the surgical area of the Doctor Negrín Hospital in Gran Canaria. In May 2022 he informed the management of the complex that was pregnant. Days later, a health surveillance doctor of this center made a report that mentioned “a relationship of tasks, working conditions and exposure to risks” of the worker during pregnancy. Specifically, he referred to risks of physical nature (falls, blows), biological (bacteria, viruses, fungi), chemicals (gases, cytostatic -drugs that are used to stop or delay the growth of cells, including cancerous ones -, surgical smoke -generated by the use of electrumurgical instruments during interventions-), psychological (mental fatigue), ergonomic fatigue) (Manipulation of patients, overdesters, postural fatigue) or exposure to radiation.
The doctor told the nurse “suitable with limitations.” According to this report, the worker had to avoid physical efforts, manipulation of charges, forced postures, exposure to certain biological and chemical agents, radiation or hazardous medications. Nor could he stand or sitting prolonged (more than one and two hours, respectively) or undergo a system of shifts, night schedules or days above eight hours a day. Nor, therefore, to the guards.
With these conditions, the Nursing Department reported “the impossibility of proceeding to an adaptation or change of jobs, having all the positions of this professional category similar risks”, and the hospital sent the case to the mutual to determine whether it proceeded to pay the benefit for risk during pregnancy.
The Mutual accident of the Canary Islands denied the nurse that benefit claiming that at that time its work could not be considered as a risk activity, since the Canary Health Service had limited itself to pointing out “the generic risks” of the position, but not the specific ones for pregnant workers. In other words, “the sequence or scope” of these risk activities had not been completed or detailed.
The sanitary appealed that decision to the courts and won. “When the risks presented by the position of a worker in the breastfeeding period have not been evaluated” in accordance with the European Directive 92/85 “the affected child is deprived of the protection that should be granted.” Therefore, “a worker cannot be treated in a period of breastfeeding as any other worker,” said that sentence referring to the doctrine set on the subject by the Court of Justice of the European Union.
That judicial resolution, dated in March 2023, estimated in full the nurse’s demand and recognized his right to receive the benefit since he requested it, a few days after having communicated to the management of the hospital his pregnancy.
The second sentence
From that first sentence, and there lies the novelty of this case, the nurse demanded compensation for the damages caused by that refusal. And the same magistrate who had recognized the right to receive the benefit for risk during pregnancy, the head of the Social Court 8 of the Gran Canaria capital, has proved him right in the first instance, although the resolution is appealed.
This second sentence distinguishes two planes. In the first, linked to risk prevention and breach of training and information obligations to the professional, he attributes all responsibility to the Canarian health service as a “safety guarantor” of the worker, especially in a case “where the mutual is shielded in the lack of concretion of the SCS report to deny the benefit” to the health.
The second refers not only to that denial, but also to the certain fact that the worker was exposed “to serious risks in her position” between the period in which she requested the suspension of her contract (May 2022) and the date on which she caused a decline as a result of an anxiety disorder (July of that same year). Therefore, he understands that the conviction must be shared between the public body and the mutual collaborator.
Resources
From the mutual they have confirmed that they have filed an appeal against that sentence, although they have declined to expose their arguments until the process ends. For its part, from the SCS there has been no answer to the questions asked by this newspaper.
In those resources, there is a mutual attribution of guilt. The MAC blames the SCS for not having carried out a specific risk assessment to the worker and the public body argues that it was the collaborating entity who denied the benefit and who, in any case, must assume responsibility. Both understand, however, that the right to pregnancy protection constitutes a mere issue of benefits and that, therefore, should not move to the scope of claims for damages.
For Fany Barreto, the worker’s lawyer, the damage suffered by her client is “intimately linked to the performance” of both defendants. “The SCS, even knowing that its inaction in the evaluation of specific risks would serve as an excuse for the mutual to denied the benefit, remained passive, allowing, after denial, the plaintiff continue exposed to serious risks indicated by the specialists of occupational risk prevention. operating room, ”he says.
In the opinion of the lawyer, the public body must have declared not suitable for the nurse at the time the mutual denied him the suspension of the contract.
Meanwhile, the mutual “was aware that, by deniring the benefit, it was incurring a action contrary to law”, since there are numerous sentences that have been pronounced in favor of the workers in identical cases, and despite this “persisted, in a conscious, serious and reproachable way, in the breach of the duty to protect the pregnant woman in front of the working risks.” Barreto considers that if the mutual was not satisfied with the performance of the SCs, he could have gone to the Labor Inspection.
For the sanitary lawyer, the sentence is “exemplary” and contributes to “avoiding future violations” by both entities. “It is unacceptable that the SCS trivialize its responsibility, justifying its action as a mere borrowing issue. It is an essential obligation of the entrepreneur,” concludes the lawyer.
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