The incapacitating assessment of fibromyalgia and chronic fatigue syndrome in administrative matters and judicial

Fibromyalgia (FM) and Chronic Fatigue Syndrome (CFS), diseases of central sensitization, not always defined scientifically. In some cases, using a poetic and metaphorical language, it is spoken of “pain of the soul in the body” or even “nameless disease”. But perhaps the best qualification is that considered “politically incorrect diseases” because their poor assessment suggests administrative and also, indirectly shortcomings, judicial, when it comes to appreciate its incapacitating nature in tax levels and non-contributory .

Among the shortcomings of the judicial system assessment, there are general and specific. Regarding the former, Law 24/1997, of 15 July, Consolidation and Rationalization of the Social Security – EDL 1997/24024 – set out new content for art. 137 LGSS – EDL 1994/16443-, based on the graduation of disability. It was intended to address the decline in the percentage of capacity according to a list of diseases that would be approved. Detracted role to the judges in this area always had an important discretion. However, the new wording of that provision was not self-sufficient, since it required a regulatory development that after so many years, still has not occurred or may occur because of the difficulties involved. Approval of a list of such features would have been a good opportunity to incorporate, like other foreign systems, FM and CFS.

We then offers the paradox of a new system, which does not apply, and an old system that continues, however, operating: the previous regulation and still in force of art. 137 – EDL 1994/16443 – in its various sections: from 3 to 7, defining the different degrees, when using open formulas. However, this system has significant shortcomings. The definitions of Art. 137 LGSS tautologies are true because nothing really define when explaining the same thing in different words. Say, for example, as in section four, which is unfit for his usual profession who can not perform all or the major tasks of it, is rather say little or rather say nothing.

Such sections – EDL 1994/16443 – also not as strict legal concepts, support multiple just solutions but only one: the beneficiary is disabled or not, but there are no intermediate terms.

Finally, its application is not a question focused on the right: choose the right or interpret, but in fact rule, as it consists of subsuming the particular course, that reality offers, within the broad provisions of that article and concrete section – EDL 1994/16443 -.

Deficiencies and resulting difficulties have forced the courts to use various techniques. For example, retrieve the few scales or lists that are no longer in force. In the case of Accidents at Work Regulations 1956 – EDL 1956/43 – which does not constitute an exhaustive list of diseases so that CFS, FM, or even multiple chemical syndrome, which relates to the above, no they are logically within its provisions when dealing with “new diseases”.

Such shortages have forced the development of essential guidelines. For example, the physical state is not susceptible of division into watertight compartments. This criterion is of great importance in the field of diseases we studied, as discussed in Tables FM or CFS usually appear other diseases, consequence or not of those, especially psychic nature.

The matter is governed in any case by a individualized circumstances casuistries purely circumstantial. Said the Maranon Doctor that there are no diseases but sick, which is already a cliché, and this feature is also predicable from a legal perspective because there are only disabled disabilities when the same or similar box ailments may impact differently depending on the type worker or beneficiary in question.

There is, therefore, definitive pronouncements regarding the Fourth Chamber patterns that justify the recognition of an incapacitating situation when it comes to such ailments. The appeal for unification of doctrine is not suitable to rule on such matters instrument. These are cases in which the prosecution transcends singular fixation and assessment of facts and not to the determination of the meaning of the rule in a general line of interpretation (based on FM, among others, the Auto 16-2 -2011 – EDJ 2011/14523 -).

It is true that in some cases by the Fourth Chamber of the purpose of the action is forced to address issues of fact and relating to specific tables, as has happened in terms of hearing or visual limitations. However, when lawyers seek it in the case of FM or CFS, it is daring, or at least naive not admissible, with a corresponding loss of time and money from their customers.

II. The absence of lists and scales commonly used

The rest of the problems arising regarding the qualification of these diseases are specific to them. For example, the fact that not specifically provided for in the corresponding lists.

They’re not on the scale of non – disabling permanent injuries. The art. 150 LGSS – EDL 1994/16443 – refers to injuries, mutilations and deformities of a definitive nature, caused by accidents or occupational diseases, without becoming a permanent disability, entail a reduction or alteration of physical integrity and appear contained in the annex to the implementing provisions of that law scale. it seems logical in this case such exclusion, as the CFS or FM do not derive from their professional and ordinarily are not just injuries, deformities or mutilations.

Nor they are in the table of occupational diseases, approved by RD 1299/2006, 10-11 – EDL 2006/311531 – although some of the substances that can cause such ailments yes they are. For example, STSJ of Catalonia 01/10/2000 – EDJ 2000/1923 – decided on the exclusion in the preceding list on a course marked by its uniqueness: it was a worker who made a trip to Miami on behalf of the company during which contracted a disease, borreliosis, one of whose consequences was postinfectious fibromyalgia. However, it recognized the existence of an occupational injury and illness work.

The common pathology of FM or CFS, unless proven otherwise supported in general terms. It must then justify the existence of an occupational injury and illness work, but it is not an easy task, because the work must be the only trigger for the disease. In connection with the Epstein-Barr virus, even if it can be considered one of the causes that can also be acquired through saliva, allowed to deny the professional qualification of the SFC in the absence of an exclusive cause (STSJ Catalonia 29-12 -2004 – EDJ 2004/243659 -).

Motivated by the laudable task of some groups, such as the Collective Ronda in Catalonia, it has generated significant casuistry in cases related to organophosphates, describing them as derivatives accident. It is argued that both syndrome multiple chemical sensitivity, such as CFS are two pathologies arising from worker exposure to toxic substances, such as insecticides and cleaning products (for all, STSJ Catalonia 27/01/2010 chemicals – EDJ 2010/55366-).

The most unjust exclusions, however, corresponding to the scale of non – contributory benefits. Although it stated in the introduction of Annex 1 of RD 1971/1999, 23-12, the procedure for recognition, declaration and qualification of the degree of disability – EDL 1999/64271- the International Classification of Diseases and CFS as follows FM were within her, Annex 1.A not included. Such an absence requires assessing these pathologies like symptoms constitute itself autonomous and planned ailments (arthrosis limitations, mental, digestive problems, for example). The use of the table of combined values, even when complementary social factors are applied, nor can exceed 45% or 50% disability in most cases, which is insufficient to achieve a non-contributory disability demanding 65 %.

This is an important shortcoming that must be integrated as soon as possible, since it involves important factor of discrimination for patients suffering from such ailments.

III. The contrast with the definition of Article 136 inability LGSS – EDL 1994/16443 –

Another drawback arises from the same definition of disability contained in art. 136 LGSS – EDL 1994/16443 -. 1: In the contributory is permanent disability worker’s status that, after having been subjected to the prescribed treatment and being medically discharged, has serious, be objectively determined and expected final anatomical or functional reductions that decrease or nullify their working capacity.

However, these diseases have always been considered difficult, if not impossible, objectification, given its symptomatic character, pure subjectivity of pain and the inability to identify them through laboratory tests or radiological. He justified this reality an attitude of distrust in all institutions, administrative and judicial, against beneficiaries, many qualified simulators and also explained that the protection of Social Security fraudulent claims regarding times.

The pressure of those affected and social importance of FM and CFS, as well as the existence of new scientific methods, which even allow the measurement of pain, has justified a progressive and gradual arrumbamiento of prejudice. Perhaps even late diagnosis has happened to precipitate the case, for example, the FM, which sometimes leads to overdiagnosis and qualify as suffering from this condition many people with chronic pain but does not meet the criteria for it.

All these circumstances also justify outdated criteria are revised and new arguments are used. Some more difficult to understand because they are perhaps subtle dialectical games like that, from the legal requirement commented: “capable of objective determination”, the current impossibility of objectification is recognized, but, however, admit the possibility of determination. Other perhaps more compressible in the sense to understand that the law requires such objectification but not fixed the means through which you can get. Legally required is the possibility of objective determination, no such objectification have to be accredited through a purely clinical diagnosis.

IV. Objectification of these diseases. Contribution and assessment of expert opinions

Objectification must be done through the provision of relevant medical reports. Medical history is usually wider in the case of CFS in FM, if in the latter case there are many cases in which the expert begins to take shape through urged and favorite argument of going to medical care primary when trying to sue in the courts.

Must be provided, of course, report specialists: a rheumatologist in the case of FM and an internist in the course of CFS. They are specialists, however, because they do not correspond them to diagnose the disease, primary care physicians and specialists in the assessment of bodily harm. They should also be provided the reports of the corresponding units of pain, in the case of having to resort to them.

The expert is to be honest, of course, that is the minimum requirement stemming professional ethics and do not deserve further comment. But also, and this is especially important and not presumed, it must be clear. There are good clinical experts who are bad and clinical experts who are evil, so that the ideal requirements for this test would pass by a good clinical and also a good expert. It will be when it acts precisely what happens to develop an expert than a mere medical report for fellow, full of technicalities, but a real job medical report which analyzes the ailments from functional perspective and in understandable language, directed to a layman in medicine, the last recipient, who is the judge. They are, however, many reports, excessive, stereotyped,

The expert report must also be ratified in court because if it does not, remains a mere doctor certificate that does not allow debate and contradiction. At this point the professional must be modest, avoiding a battle of egos (the doctor and the judge frequent situation), which does not mean either be fainthearted nor unsafe when responding to questions from the parties or the same judge.

It is also desirable to the presence of the beneficiary, as sometimes special importance to judicial recognition itself, fulfilled manifestation of the principle of immediacy that although it is not definitive proof in this type of disease, can contribute powerfully to the conviction is granted who will decide on an incapacitating situation and its significance. The judge must also determine whether truth be told, the sincerity of the words

Of course, this is free when assessing expert minimally always justifying the sense of choice. You can also go to the forensic evidence generally does not have great significance in these cases for three main reasons. The first is its uniqueness, since only come to her when major contradictions are appreciated. Second, there are usually no forensic specifically allocated to social courts. Third, not your judgment will be especially qualified because there are specialists in this type of disease, regardless of whether objectivity that such reports distill, derived from the status of public officials and impartiality appreciate that such confers status.

Ordinarily, the preference for the report of EVI also exists in such ailments, justifying that already in supplication, reviewing the proven facts of the judgment, and which is subject in most cases success of the appeal, can only be accepted when the evidence offered such revisorios effects have greater scientific expertise or specialization that the expert chosen by the magistrate.

Would be that the derivative of the specialized services of public medicine or also private but always bring cause greater rigor, technicality, with means, for example, third generation. Therefore, it seems inevitable that those who can access these expert qualified, because they have economic means, have an undeniable additional advantage over those who have gone to specialized services but public medicine (Clinic, Vall d’Hebron). In the latter case there will be, as is logical, reasonable delay or other unavoidable easements as inherent to public services.

V. The restrictive criteria used by management companies and mutuals. The judicial response

The last of the factors that has affected negatively in recognizing the debilitating nature of these diseases is the restrictive approach used by management companies and mutuals.

It serves as the guide shows Valuation of incapacity for Primary Care Physicians, document born of the collaboration between the National School of Occupational Medicine (ENMT), the Institute of Health Carlos III and the INSS (www.seg-social .is). When assessing the limitations suffered by patients diagnosed with fibromyalgia, supports, for example, that the only validated instrument is sufficiently called FIQ though it may be too subjective when used in labor assessment, so that the number of tender points it is not a criterion of gravity, only one diagnostic criterion.

But the important thing is that detaches the severity of the FM of using painkillers or dose received by the patient. It is also considered inconsequential to the chronicity evolution when even the granting of a disability pension appears to improve outcome of these patients, and also ruled out the presence of a psychiatric pathology associated with the disease type.

Denied disabling situation, except in exceptional cases where the painful symptoms produce a general deterioration, and generally will only subsidiary of temporary disability, which should be maintained in acute phase patients.

The trend appeared in mutual also has this restrictive content. When it comes to temporary disability, recommend that the duration as short as possible. Use extra caution if there is a medical-legal context (traffic, application for disability, etc.) that the worker can recommend the extension of the low. manual published by the standard times INSS used and establishes an average duration of fourteen days, the time required to rule out other diseases.

The justification for that low not stretch apologizes for any inconvenience that may result in a prolonged situation as a greater awareness of pain, the feeling of isolation, worthlessness, with the loss of self-esteem that this entails, as well as economic problems which may lead to less provision or difficulties that may arise when the reincorporation arises. All in a statistical context cases increased dramatically in recent years and almost always in jobs that have little or nothing rewarding.

Intervention assessment teams is settled logically after a rejection proposal. Sometimes with a sign interrogation included in the opinion itself, which generates more confusion about reality and extent of these diseases.

Marinated sometimes such a restrictive attitude with improbable events that transcend such an assessment, as happened in Vigo in 2008, when, among other arguments, he rebuked a lady her appearance, her hair, makeup, with add-ons, was not own of patients with these diseases, which implicitly was also used as Rejected argument.

The subsequent administrative appeal is dismissed in 90% of cases, so the only option left open, the role of judges socially if, increasingly consider the claim made. The extraordinary nature of the appeal for reversal favors usually confirm the first instance judgment.

When the statements are desestimatorios, besides the lack of sufficient severity, the motivations are traditional referring y: basically the lack of objectification of such ailments (only clinical data) subjectivity of pain and the similarity of the symptoms with which they are typical of other diseases.

Some criteria qualified professionals (Dr. J. Fernandez-Sola, coordinator of the Chronic Fatigue Clinic of Rev, Esp Reumatol 2004; 31:… 535-7.- vol.31 No. 10) would question however, effectiveness of such criteria regarding SFC. As stated, the lack of a specific analytical or biochemical marker was initially thought that criteria based solely on clinical data and, therefore, relatively subjective, not be useful for diagnosis. But it is a posture overcome if (Fukuda) the presence and characteristics of fatigue and other associated symptoms (fever, sleep disorders, mood, etc.) are valued. In this case also preventing the causes of exclusion use the same criteria set (organic or previous mental diseases associated with fatigue or morbid obesity). It seems that the differentiation between the primarily mental or psychosomatic illnesses and CFS is available to any physician experienced.

Ultimately, assimilation of this medical and social reality, lawyers and judges will determine the success of the claims. Also other diseases budding recognition, and related to analyzed here, such as multiple chemical syndrome, or electrohipersensibilidad not continue still considering caricatural way, as I have come to read (excuse the appointment so you can have pejorative), similar to demonic possession or lycanthropy ailments.

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