Roj: STSJ PV 3394/2007 Id Cendoj: 48020340012007101896 Organ: Superior Court of Justice. Social Chamber Location: Bilbao Section: 1 Appeal No.: 990/2007 Resolution No.: 2326/2007 Procedure: SOCIAL Speaker: JAIME SEGALES FIDALGO Type of Resolution: Judgment APPEAL No.: 990/2007 N.I.G. 00.01.4-07/000411 SENTENCE No.: SOCIAL CHAMBER OF THE SUPERIOR COURT OF JUSTICE OF THE AUTONOMOUS COMMUNITY OF THE BASQUE COUNTRY In the city of Bilbao, on September 18, 2007.
The Social Chamber of the Superior Court of Justice of the Autonomous Community of the Basque Country, composed of the Hon. Judges Mr. PABLO SESMA DE LUIS, Acting President, Mr. EMILIO PALOMO BALDA, and Mr. JAIME SEGALES FIDALGO, Magistrates, has pronounced IN THE NAME OF THE KING the following SENTENCE In the appeal for supplication filed by XL INSURANCE COMPANY LIMITED S.A., SMURFIT KAPPA NERVION S.A., H.D.I. HANNOVER INTERNATIONAL SEGUROS Y REASEGUROS S.A., and CALCINOR S.A. against the judgment of the Social Court No.1 (Donostia) dated September 13, 2006, issued in the AEL process, brought by Rodrigo against SMURFIT KAPPA NERVION S.A., H.D.I. HANNOVER INTERNATIONAL SEGUROS Y REASEGUROS S.A., XL INSURANCE COMPANY LIMITED S.A., and CALCINOR S.A. The Hon. Mr. Magistrate JAIME SEGALES FIDALGO, who expresses the opinion of the Chamber, is the Speaker.
BACKGROUND FIRST.- The only instance of the ongoing process began with a lawsuit and ended with a judgment, the summary of the proven facts of which is as follows:
1. Mr. Rodrigo, with ID No. NUM000, born on 04.11.46, provided services on behalf of the defendant company, performing the duties of a driver.
2. On October 25, 2001, the plaintiff suffered a work accident due to caustic burns on his entire face from calcium hydroxide, when he received a stream of hydrated lime in his face by accidentally opening the valve of the tank, when he inadvertently leaned on said valve after slipping.
3. The plaintiff Rodrigo was driving the truck with license plate 2717BDS with a tanker carrying hydrated lime, and before reaching SMURFIT in Iurreta (Bizkaia), he had proceeded to unload in Mallabia, leaving a pressure in the tank of approximately 400 to 500 grams. Upon arriving at the SMURFIT factory, he parked the truck near the unloading area, and near the place where the paper mill slag is stored and removed with the shovel, he proceeded to lower the legs of the tank, positioned the dump truck for unloading, and even without installing the hoses to proceed with the unloading, at that moment he slipped and the accident occurred.
4. Immediately after being hit by the hydrated lime in the face, mouth, and eyes, he was attended to by a worker from the SMURFIT company, who started pouring water on his face and notified the company’s communication center to send the medical staff of the company, and upon arrival, the company doctor and the health assistant transferred Mr. Rodrigo to the medical service where he was given anesthetic eye drops and abundant irrigation with water, deciding to transfer him to the Galdácano Hospital by taxi for being the fastest means. When he was called on the phone, a taxi driver from Durango came to the factory, approximately after 8-10 min., and transported Mr. Rodrigo alone to the Hospital, being the person who accompanied him to the attendants, paying for the trip himself.
5. The plaintiff worker was admitted to the Galdacano Hospital on October 25 and 26, 2001. He has been admitted to the Donostia Hospital for tests and treatments related to the ailments resulting from the work accident during the following periods: from November 6 to 21, 2001; from March 25 to 27, 2002; and from April 15 to 25, 2002.
6. By resolution of the National Social Security Institute dated September 25, 2004, it is recognized that the injuries suffered by the plaintiff as a result of the aforementioned accident are constitutive of Absolute Permanent Disability for all types of work, recognizing the right to receive a pension of 100% of the regulatory base of 2,330.16 euros per month, with effects from April 2, 2003, and not beingable to perform any work. The capital cost of said pension amounts to 329,456.44 euros, with legal interest on arrears.
7. By resolution of the Provincial Directorate of the National Social Security Institute dated May 25, 2006, the recognition of the rights derived from professional contingencies with a capital cost of 28,200.67 euros is ratified. 8. The plaintiff’s company, Smurfit Nervión, had signed a collective labor agreement with the workers’ legal representatives on May 17, 2000, which was published in the Official Gazette of the Territory of Bizkaia on May 29, 2000, regarding the company’s functional system, in which an annex was included to the collective agreement on preventive measures for accidents at work, specifying in Annex V the mandatory use of helmets and other protective equipment by truck drivers, when performing their duties.
» SECOND.- Against the above judgment, an appeal for suplication was filed by XL INSURANCE COMPANY LIMITED S.A., SMURFIT KAPPA NERVION S.A., H.D.I. HANNOVER INTERNATIONAL SEGUROS Y REASEGUROS S.A., and CALCINOR S.A., for the grounds of dismissal provided for in Article 191.b) of the LRJS, stating in their respective briefs that the trial court’s decision should be revoked, alleging the misapplication of substantive law provided for in Article 120.4 of the LGSS, and applying Article 116 of the same legal text, as well as Article 123 of the LGSS, since the accident was not caused by work. The plaintiff, Mr. Rodrigo, has not used the individual protective equipment, helmets, and gloves, which were provided by his company. THIRD.- The plaintiff worker, Mr. Rodrigo, has been legally notified and has not submitted brief in response to the appeal for suplication. FOURTH.- The Chamber considers the appeal for suplication filed to be appropriate and, after a reasoned judgment, revokes the contested judgment and acquits the defendants of all claims filed by Mr. Rodrigo. FIFTH.- No special pronouncement is made regarding the costs of this appeal.
FUNDAMENTALS OF LAW FIRST.- The appeal for suplication is timely filed and properly managed by the appellants, so it is appropriate to proceed to its review. SECOND.- Article 191.b) of the LRJS provides that the dismissal of the appeal may occur when the reasons for dismissal provided for in Article 193 of the same legal text occur. THIRD.- Article 120.4 of the LGSS determines the concept of an accident at work, so it is appropriate to analyze the causes of the accident suffered by Mr. Rodrigo, who was driving the truck with a tanker carrying hydrated lime, unloading in Mallabia, and later at the SMURFIT factory, being affected by the current regulations. FOURTH.
– Article 123 of the LGSS determines the requirements for the provision of benefits in the event of a work accident, so it is appropriate to determine whether the plaintiff’s illness is the result of a work accident or not. FIFTH.- There being no other legal or factual issues to consider, it is appropriate to grant the appeal for supplication filed by XL INSURANCE COMPANY LIMITED S.A., SMURFIT KAPPA NERVION S.A., H.D.I. HANNOVER INTERNATIONAL SEGUROS Y REASEGUROS S.A., and CALCINOR S.A., and acquit them of the claims filed by Mr. Rodrigo. Therefore, by virtue of the powers conferred by the current legal regulations, THE SOCIAL CHAMBER OF THE SUPERIOR COURT OF JUSTICE OF THE AUTONOMOUS COMMUNITY OF THE BASQUE COUNTRY, pronounces the revocation of the contested judgment and the acquittal of the defendants of all the claims filed by Mr. Rodrigo. As provided for in Article 233.1 of the LRJS, against this judgment, an appeal for unification of doctrine may be filed before this Chamber. A certified copy of this judgment will be issued for its incorporation into the record of the proceedings, as well as for notification to the parties. JAIME SEGALES FIDALGO MAGISTRATE EMILIO PALOMO BALDA MAGISTRATE PABLO SESMA DE LUIS ACTING PRESIDENT ** This sentence is not subject to appeal **. To be notified. Signed. I certify.