PSYCHOLOGICAL DISABILITY IN LABOR LITIGATION *

Author: Luis A. Raffaghelli*

Judge of the National Chamber of Labor Appeals

Room VI Bs.As. Argentina. Professor of Labor Law
Advisor to the Latin American Association of Labor Thursdays-ALJT

“…In 1714 Bernardino Ramazzini died. He was a strange doctor, who began by
asking: What do you do for a living? It had not occurred to anyone that this could
have any importance. His experience allowed him to write the first Treatise on
Occupational Medicine where he described, one by one, the diseases common in
more than fifty occupations. And he found that there was little hope for the workers
who ate hungry, without sun and without rest, in closed, unbreathable and filthy
workshops..."

Eduardo Galeano, CLACSO Mexico City (Page 12 – Bs.As. 18.11.2012)

SUMMARY
YO. Introduction.
II. Mental Health and Work.
III. Psychic Damage. Compensatory recognition. Jurisprudence. Evolution.
IV. Psychological disability assessment tables. Comparisons. Provisionality and
Finality.
V. Judicial expertise. Characteristics. Evidentiary value. Particularities of
medical-psychological expertise.
VI. Conclusions.
Literature

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YO. INTRODUCTION

The consequences of alienated work, which, in its pursuit of productivity goals, does
not consider the suffering and health consequences for the worker who performs the
tasks, is one of the major issues addressed by occupational medicine.

And this is justified if we consider that the most important thing in this matter is the
permanent and constant search for occupational prevention.

A cyclopean task that requires multidisciplinary responses and, above all, a

permanent and active presence of the State at all stages, as well as the commitment
of social actors in a profound intersectoral dialogue.

However, we are very far behind, at least in Argentina, and although there has been
progress in the prevention of work-related accidents, the same has not been the case
with occupational diseases.

Once an accident or illness has occurred, with the human and material costs that it
entails, it is necessary to first seek the recovery of the worker who has suffered the
misfortune and then arrive at the various compensation proposals.

Argentina ratified Conventions 155 on "Safety and Health of Workers" (from 1981)
and 187 on "Promotional Framework for Safety and Health at Work" (from 2006) of
the ILO through laws 26693 and 26694, which have been considered relevant
conventions, overcoming a reticent past in the matter (San Juan Claudio, 2013).

The international organization warned that every 15 seconds a worker dies from
accidents or occupational diseases and that in that same period 160 workers suffer an
accident. Every day, 6,300 people die as a result of accidents or illnesses related to
work – more than 2.3 million per year – and more than 337 million work-related
accidents occur which, for logical reasons, lead to absenteeism.
"The cost of this daily adversity is enormous, with the economic burden of poor
health and safety practices estimated at 4 per cent of global annual Gross Domestic
Product," according to the ILO report on health and safety at work, entitled Decent
work, safe work (www.ilo.org).

Based on the regulations approved, Argentina has committed to implementing and

periodically reviewing a coherent national policy on worker health and safety and the
work environment, and to promoting continuous improvement of safety and health in
the workplace.

The approval of both conventions represents "significant progress in the protection of

workers' safety and health," concluded the ILO's Buenos Aires Office.

The ILO said "occupational safety and health conditions differ between countries,
economic sectors and social groups" and argued that "developing nations pay a
particularly high price in deaths and injuries, as large numbers of people are
employed in hazardous activities" such as agriculture, fishing and mining, and the
poor and least protected - women, children and migrants - are the most affected, the
labour body said in a report.

The ILO's Safety and Health at Work and the Environment Programme (SafeWork)
is designed to raise global awareness of the magnitude and consequences of work-
related accidents, injuries and diseases and aims to place health and safety on the
international agenda and to stimulate and support practical action at all levels.

"Decent work is safe. "ILO standards on occupational safety and health provide
essential tools for governments, employers and workers to establish robust
information prevention and inspection practices and to ensure maximum security,"
he stressed.

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The ILO has adopted more than 40 standards on occupational health and safety, and
almost half of these instruments refer directly or indirectly to issues related to this
problem.

The body's codes of practice provide practical guidelines for public authorities,
employers, workers, companies and specialised bodies responsible for the protection
of safety and health at work.

The Encyclopedia of Health and Safety at Work can be considered the best example
of an informative tool due to the breadth of the topics it covers, the rigor with which
it analyzes and addresses them, its consolidated tradition and its enormous
dissemination, which make it the reference work par excellence on occupational
health and safety throughout the world.

II. MENTAL HEALTH AND WORK

Human suffering finds one of its hidden constants in the study of the relationship
between mental health and work (Bermann Sylvia, 1993).

New forms of work organization that seek results under what has been called
“management sciences” – management – put the health of workers at risk at work.

And what can be said then about informal workers, who still have a high percentage
in our country and under precarious forms of employment, who work in companies
that do not meet the minimum legal standard of regulatory compliance regarding
health and safety at work.

Work overload sooner or later generates pathologies with accidents or illnesses.

In this regard Dejours (Bs.As. 2012) mentions four major pathologies:

1. Musculoskeletal disorders, which affect not only manual workers but also
administrative and executive workers.
2. The “burn out” syndrome…”being burned out”.
3. Known in Japan as “sudden death” caused by a cerebral hemorrhage or a
vascular spasm, in the absence of any cardiovascular risk factor (no obesity, high
blood pressure, diabetes, smoking, family history), only work overload.
4. Drug use: cocaine, alcohol and medication to be able to withstand the
demands of results and performance, which is incurred by senior workers, executives
and assembly line workers.

The work of people who feel out of place or who are carrying out an activity that is
at odds with their own ethics brings with it suffering, and therefore a reflection on
human psychology, an issue that was the thematic axis of the Second University
Congress of Psychology applied to work (Bs.As. May 2013).

You cannot ask a worker to betray himself, to do something that he considers wrong,
not related to work ethics but to productivity.

Faced with this reality, denounced by scholars at the highest level of research in the
field, we can only insist on the struggle to materialize dignified, decent work, and its
protection, applying international standards on health and safety at work, since as the
Argentine Federal Court has said since 2004, the human person is the center of
protection and the worker is the subject of preferential protection, and not an object
of the market, or in other words, it is the essential key to the social question, which
does not admit postponements in the face of the logic of productivity.

Work, as established in art. 4 of the LRT, is a productive activity, but also a creative
activity of man himself, that is to say that man delivers quantitative aspects with his
performance but also qualitative aspects with his creativity. This is why, as Rodolfo
Capón Filas (Labor Law, 1998) points out, in addition to remuneration as a

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quantitative element, it must receive stability and participation in decisions as a
qualitative element.

The Governing Body of the International Labour Office (ILO) approved a new list of
occupational diseases at its meeting on 25 March 2010. This new list replaces the one
contained in the Annex to Recommendation No. 194 concerning the listing of
occupational diseases and the recording and notification of occupational accidents
and diseases, which was adopted in 2002.

One of those responsible for the document stated that... “The number of physical,
chemical, biological and psychosocial factors that affect the health of workers is
constantly growing, as is the number of occupational diseases included in national
programmes on safety and health at work and in compensation schemes. It is
therefore necessary to regularly review the lists of occupational diseases and add
newly identified ones, in order to maximise the effectiveness of prevention strategies
and appropriate compensation schemes. “This meeting was a step in the right
direction” (Sameera Al-Tuwaijri, Head of the ILO’s Occupational Safety and Health
and Environment Programme).

The revised list includes a range of internationally recognised occupational diseases,

from diseases caused by chemical, physical and biological agents to skin conditions,
musculoskeletal disorders and occupational cancer.
They established a series of criteria for deciding which diseases to include in the
updated list, namely:
• a causal relationship with a specific agent, exposure, or work process;
• connection with the work environment and/or specific professions;
• It must occur among groups of affected people with a frequency greater than
the average incidence in the rest of the population;
• and there must be scientific evidence of a defined pattern of illness after
exposure and the possibility of contagion.
A brochure entitled “Emerging risks and new prevention models in a changing world
of work”, published on the occasion of World Day for Safety and Health at Work (28
April), summarises key emerging issues in health and safety at work, including those
related to technical innovations such as nanotechnology and biotechnology.
Furthermore, it is claimed that experts in the field have observed a worrying increase
in disorders caused by work-related stress due to the inability to “cope with new
patterns of working life”.

III. Psychic Damage. Recognition of his compensation. Jurisprudence.

Evolution.

Psychological damage is constituted in relation to an injury, trauma or lesion of

sufficient magnitude for this. It is any form of deterioration, or dysfunction, or
disturbance, or alteration, or psychogenic or psycho-organic development of people,
which, impacting on their affective and/or intellectual and/or volitional spheres,
limits their capacity for individual, family, social and/or recreational enjoyment. It
must be kept in mind that each human being has his or her own particular field of
"task" and/or any "vital task" or -also- "capacity for enjoyment", which is different
from other people, not only in its extension, but also in terms of its understanding,
which implies the "set of qualities that make up an idea or concept" (Castex M.
1989).

Psychic damage is undeniable when it comes to severe misfortunes, whether sudden

or occupational or work-related illnesses, and can take on different dimensions, with
different factors converging, such as age, the victim's qualifications, the degree of
incapacity and the fear of not being able to recover the work ability one had, or how
to adapt to the reductions suffered, with their personal, social and family
consequences.

As has been pointed out, when one suffers a severe injury in any part of the body and
faces extreme situations, the psyche feels the impact and immediately begins the

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process of elaboration, with the aim of regaining the balance that was momentarily
lost. This process is usually slow and laborious, and requires the injured person to
undergo therapeutic-psychological treatment with the intention of helping him and
preventing future complications, as well as social reintegration. (Schik H. 2009).

Initially, jurisprudence included psychological damage with moral damage, which

manifests itself as a post-traumatic after-effect of a workplace accident, disturbing
the emotional and spiritual balance of the victim, in parallel with physical damage,
and was not recognized as a separate item that increases the percentage of disability
suffered by the victim.

Beyond the academic debate about whether psychological damage has compensatory
autonomy or not, the truth is that it has had normative reception - disability
assessment tables - as well as jurisprudential reception, recording this evolution.

The conceptual autonomy of injuries to the psyche (the so-called psychic or

psychological damage) and to the integrity of the subject's appearance or corporeal
identity (the so-called physical damage) was recognized, but it was rejected as
inconvenient that for the purposes of compensation these damages were a tertium
genus that should be compensated in an autonomous, particularized and independent
manner from patrimonial damage and moral damage. Because such a practice can
lead to unfair and unacceptable double compensation. (SCBA, 5/24/2006, Ac.
90.471, "K, J. H. c/ Pagano de Báez, Alicia and O. “Damages and losses” JUBA,
B28408).

Art. 1068 of the Civil Code, when referring to "damage susceptible to pecuniary
assessment", indirectly due to the harm done to the "faculties" of the person, allows
to place there all economic detriment to the health of the human being, including his
physical and mental abilities that allow him to develop as such. Authorized civil
doctrine maintains that compensable damages in terms of psychological harm are
included within material damage, given the differences in the item in question with
respect to moral damage, which range from its origin (in one case pathological and in
the other not) to the entity of the harm suffered (one material, the other immaterial),
with the consequent projection of effects within the procedural legal scope in terms
of evidence, since the first requires extrinsic evidence, while the other is proven in re
ipsa. (Medina G. and García Santas C., 2009).

In the labor jurisdiction, psychological damage is practically included within

patrimonial damage, since it forms part of the considered physical incapacity.

Later, civil doctrine expressed itself in the sense that psychological incapacity should
be included in patrimonial or material damage, as part of physical or moral
incapacity. He said that… “The Argentine Civil Code does not include any category
other than patrimonial and moral damages, consequently, if the alleged
psychological incapacity proceeds independently, it must be subsumed within
patrimonial or moral damages depending on its characteristics. Psychophysical
injury is not, in itself, compensable damage; it is, however, a source of compensable
patrimonial or material damage, since it causes direct or indirect harm (art. 1068,
1069, Civil Code) or moral damage (art. 1078, Civil Code).CCC. Quilmes,
05/19/2009, “Salinas de Oviedo, Aurelia c/El Nuevo Halcón SA s/ds. and
ps.”(WebRubinzaldanosacc23.5.r105).

Civil jurisprudence has established that…"since any reduction in human physical

integrity is a matter of compulsory compensation, it must be recognized that any
reduction in the psychic abilities of an individual also constitutes compensable
damage. Post-traumatic neuroses - specific or non-specific - medically fit into the
possible consequences of an accident, being variable according to the cases and
being able to be classified beyond the neurological area, in anxiety, obsessive and
depressive neuroses" (Conf. CNCiv. Room B, 11/28/74, LL 1975 A-688).

The compensation of the expenses demanded by the treatments in this matter is also
recognized, resolving that "the patrimonial detriment that a psychiatric treatment
supposes, indispensable to repair injuries to the health that are sufficiently proven

9
and also economically measurable, constitutes a certain damage, although the
respective expenses may or must take place in whole or in part, at a later time"
(CNFed. Civ. and Com. Room II, 04/10/81, JA 1981-IV-470).

The labor jurisdiction has not been alien to this legal construction and today the
recognition of psychological damage is no longer discussed, although we will later
deal with the difficulties presented by its expert determination.

Psychic damage must be compensated to the extent that it means a decrease in

psychic abilities, which represent an alteration and affectation of the body in the
emotional and psychic aspects, with the consequent spiritual damage, since this
implies a loss of health considered in an integral concept.

The distinction between moral and psychological damages has been clearly made
some time ago by establishing that: "Psychological damages tend to compensate for
the expenditure that the plaintiffs will have to make to recover the affected mental
health, through appropriate medical and psychotherapeutic treatment, taking into
account that the deceased worker was the father of five minor children and there is a
psychological report in the case that advises the need for such treatment for the
beneficiaries, which was not questioned by the defendants. The sum for moral
damages, for its part, covers the pain or suffering suffered by the family unit due to
the sudden, abrupt and sudden disappearance of its head of the family, that is, it
covers the spiritual affectation suffered by the members of the family group."
(CNAT, Sala I, "BARRAZA, María c/ Electrolaser SA s/ Indemnización por
muerte", 28-5-2004).

The Supreme Court of Justice of the Nation has held that when the victim's physical
or mental abilities are permanently diminished, this incapacity must be subject to
compensation regardless of whether or not he or she performs a productive activity,
since physical integrity has in itself a compensable value and its injury affects
various aspects of the personality that are part of the domestic, social, cultural and
sports spheres, with the consequent frustration of the full development of life
(Rulings: 308: 1109; 312: 2412, S.
621.XXIII, original, 12-9-95).

“Psychophysical integrity has a compensable value “per se” that not only includes
the effective and concrete profits lost, but also includes the vital impact on the person
in his or her “self”, individual and social, so the victim must be compensated for the
damage to health that affects his or her vital significance.” (Cam. Civ and Comm.
Blue, Room 2, 2/13/97, “VIÑAS Ana Mc/ Pedersen Pablo G.”, LLBs.As.1997-99).

“It is necessary to take into account the personal circumstances of the victim and the
severity of the consequences that may extend not only to the workplace, but also to
his or her social life, affecting social relationships, sports, etc.” (CS, 12/12/1989,
“ORTIZ, Eduardo A. I. c/ Empresa Ferrocarriles Argentinos s/ damages and losses”,
Judgments 312:2413; SC, 9/15/1987, “VELASCO Angulo, Isaac c/ Buenos Aires,
Province of s/ damages and losses”, Judgments 310:1827; SC, 5/30/2006, “COHEN,
Eliazar c/ Río Negro, Province of and others s/ damages and losses”).

The International Labour Organization (ILO) - as mentioned above - has revised and
expanded in 2010 the list of so-called occupational diseases (Occupational Safety
and Health Series, No. 74 List of occupational diseases) establishing the guidelines
for their identification and recognition and the criteria for including diseases in said
list.

It includes post-traumatic stress disorder, which was a recognized and clear disease
internationally, although it did not appear on the European List of Occupational
Diseases. Post-traumatic stress disorder was the result of exposure to a series of
extremely violent or stressful situations or events to which many workers might be
exposed, including police officers, emergency and first-aid workers, firefighters and
train drivers. Many PTSDs continued for a considerable period of time. It had been
recognized that stress itself was not a disease but that it could lead to developing one.

11
In this regard, it should be noted that each person responded differently to the same
type of stress, according to their degree of vulnerability.

The representative of the World Health Organization (WHO) stressed that health
could not be considered without taking into account mental health and further
highlighted that a list of occupational diseases that did not include a point on mental
and behavioural disorders could not be considered a complete list. The working
experts were keen to improve reporting of mental and behavioural disorders and
noted that even well-known diseases were currently under-reported. Better reporting
would contribute to improved prevention, which was of great importance.

IV. TABLES FOR EVALUATION OF PSYCHOLOGICAL DISABILITY.

COMPARISONS. Provisionality and Finality.
One of the problems that is observed in Argentine courts, especially in labor courts,
in these times of transition and legislative changes, is that of expert work in matters
of psychological incapacity resulting from accidents and occupational diseases, such
as the interpretation of the evaluation parameters of said incapacities, which are
excessive or omitted and require a reasonable and unified hermeneutical advance.

In expert reports submitted to the labor court, it is almost usual for medical experts,
with the aid of reports and psychological tests, to assign a percentage of disability
and therapy treatment, setting the time and cost of the same, but without clarifying
the impact of this treatment on the permanent disability of the victim of a work-
related accident.

Faced with this, we find the current doctrine of the Federal Court has established that
the PSYCHOLOGICAL disability that is compensated is PERMANENT, which in
many cases leaves the judge without adequate technical assistance to resolve the
specific case fairly.

He has pointed out that... "it is irrelevant to the case that the worker had not reported
prior to this trial the suffering of a psychological disorder derived from the
misfortune suffered, since the present claim is based on civil norms that contain
liability assumptions different from those provided for in the special law. Regarding
the link between moral damage and psychological damage, the SCJN established
that for the autonomous compensation of psychological damage with respect to
moral damage, the incapacity to be compensated is permanent (and not temporary)
and must produce an alteration at the psychological level that has an adequate
causal link with the damaging event”… (SCJN 742 XXXIII, “Coco Fabián v. Pcia.
from Bs. Ace. s/ damages and losses” 6/29/04, rulings 327: 2722).

In the same sense, it established that when the victim's abilities, both physical and
mental, diminished, this incapacity must be repaired, to the extent that it assumes a
permanent condition (CS 36 XXXI, "Sitjá and Balbastro, Juan c/ Pcia. of La Rioja s/
damages and losses”, 5/27/03, rulings 326: 1673).

This means that the judge does not usually have all the objective elements to
determine psychological incapacity without incurring arbitrariness. This is because
therapeutic treatment or support means admitting the real possibility of the patient's
recovery, to the level prior to the accident in the best of cases, or the reduction of his
or her pain and adaptation to the situation generated by the work injury.

Civil jurisprudence has established that..."when psychological treatment is ordered, it

is because it is evaluated as sufficient to protect an underlying emotional state and
character, without serious psychiatric pathology, nor suffering from incapacitating
neurological sequelae, since the appropriate treatment proposed is aimed at ensuring
that the personality absorbs and overcomes the harmful situation. It constitutes a
psychic injury when the subject becomes intellectually, emotionally or volitionally ill
as a result of the event, beyond the limits of normality or the power of the personality
to absorb, process and overcome the harmful situation" (CCC. San Isidro, room 2,
“Rasch c/Quintana”, case number 106,343 of 4.12.08. RSD 5/08 at
www.casi.com.ar).

13
And at this point the importance of psychological expertise is highlighted, since if
this says nothing about the duration or "permanence" of psychological deprivation,
but rather, when advising a psychotherapeutic treatment, the incapacity is susceptible
to being overcome, for compensatory purposes, it should not be confused with the
"irreversible" physical impairment suffered by the injured party. (CCC. San Isidro,
room 2, “Rasch c/Quintana”, case number 106,343 of 4.12.08. RSD 5/08 at
www.casi.com.ar).

For this reason it has been said that..."it is inappropriate to jointly compensate the
items of psychological damage and treatment because the former is compensated in
full without requiring the result of the subsequent therapy, while the treatment only
becomes compensable based on the determination of said result in order to be in a
position to quantify the effective remaining decrease in psychological capacity.
(SCBA, 5/24/2006, Ac. 90.471, "K, J. H. against Pagano de Báez, Alicia and others.
Damages". JUBA, B28408).

Specialized studies, with the support of the University of Buenos Aires and the
National Academy of Sciences of Buenos Aires, developed jointly by the First Chair
of Forensic Psychology (UBA) and the Interdisciplinary Center for Forensic
Research dependent on the National Academy of Sciences of Buenos Aires, the
Research Program on Psychological Damage, numerous Forensic Offices of Justice,
official chairs, Evaluation Centers, independent experts and, above all, the Forensic
Medical Corps of the National and Federal Justice, after concluding the first stage of
the investigation, established a new Scale known as "Scale of the National Academy
of Sciences of Buenos Aires", and defined the so-called Psychological Damage,
distinguishing it from Moral Damage and, in the order of Forensic Psychopsychiatry,
from suffering. Four degrees of psychological incapacity are also established
(CASTEX and SILVA, 1997 and 2011):

to) Mild: includes all those evaluated who require treatment or do not require
supportive or clarification treatment, or if required, this would not last beyond three
(3) months.
b) Moderate: those who satisfy a brief psychotherapy requirement, lasting
between three (3) months to one (1) year, may also eventually require
psychopharmacological support.

c) Serious or severe: includes those who need psychological support for a period
of more than one (1) year and prolonged psychopharmacological support.

d) Very serious: this would include those for whom there is no possibility of
restitutio ad integrum and who are eligible for the tutelary figures provided for in the
cohabitation regulations. It is considered appropriate, in every expert evaluation
report, to accompany the percentage determined, indicating to the judicial authority
or institution that requires it, what the incapacity consists of, specifying what the
person evaluated can and cannot do in the various phases of his current work, using
clear, precise and illustrative examples (Defillipis Novoa rule).

The jurisprudence forms a consensus regarding the fact that “scales are instruments
that assist both the expert and the judge, and labor laws, in general, have
incorporated certain tables into their text for the evaluation of disabilities.
Independently of these tables, there are other estimates, called thus because they
take into account percentages linked to the degree of anatomical-functional
deterioration suffered by the worker or employee, but such tables do not bind judges
and should not be applied in an absolute and rigorous manner, in a general and
indiscriminate manner, but rather must be done in relation to each particular case”
(CNAT "BURLATO, Salvador C/ ABB MEDIDORES SA S/ dismissal", SD
24.09.01 Sala IX)...“the scales that quantify disabilities do not constitute a rigid rule
-which should be applied by means of simple arithmetic operations- but only a guide
to estimate the decrease caused by a certain illness in each particular case” (SD No.
95824, issued in the case “PUZZI, María E. C/ MAPFRE ARGENTINA ART SA
s/accident – special law”, 10/25/11, Room IV CNAT).

15
Reactions or disorders due to POST TRAUMATIC STRESS according to the current
scale of Law 24557 approved by Decree 659/96 will be recognized when they are
directly related to relevant traumatic events that occur at work, either as accidents, or
as an eyewitness to the same. They constitute a disease, officially recognized by the
DSM III, and the ICD 10 (WHO), which has an etiology, a presentation and a course,
as well as a prognosis and resolution.

It states that…in general they tend to adapt to their new reality, and the vast majority
of patients improve after three to six months, without sequelae.

“A smaller group of cases develop into POST-TRAUMATIC NEUROSIS, which

does determine some degree of incapacity for work.”

It considers for its evaluation the ABNORMAL NEUROTIC EXPERIENTIAL

REACTIONS (NEUROSIS), emphasizing that the previous personality must be
carefully evaluated, and the following are considered important features for the
evaluation:

• the basic personality of the subject,

• the biography,
• the episodes of mourning,
• the affective response,
• frustrated job expectations and personal relationships with the environment.

It also contemplates four degrees.

Grade I is defined as related to everyday situations, the magnitude is mild, it does not
interfere with daily life activities, nor with adaptation to one's environment. They do
not require permanent treatment without disability.

The outcome without incapacity of this degree is criticizable in that it does not
clarify whether it may merit at least therapeutic treatment, since it does not rule it out
and therefore places the responsibility of interpreting the text in relation to the
specific case and the person of the victim in the hands of the expert.

In Grade II...The basic personality traits are accentuated, there are no alterations in
thinking, concentration or memory. They sometimes require some type of drug or
psychotherapeutic treatment and it grants a 10% disability.

The abnormal experiential reaction produces an anatomical and/or psychophysical

functional disorder, and therefore it seems inappropriate to restrict the judge with the
rigid fixing of the percentage that he sets, which in the case of trials outside the
special tariff regime, will enable the judge to make comparisons with other scales
and with the DSM IV.

Grade III cases require more intensive treatment. There is remission of the most
acute symptoms within three months. Memory and concentration disorders are
detected during the psychiatric and psychodiagnostic examination. The forms of
presentation range from depression, conversion crises, panic attacks, phobias and
obsessions. They are reversible with appropriate psychopharmacological and
psychotherapeutic treatment. Controls continue throughout the year. Grants a 20%
disability.

The percentage of disability that is set has also been criticized as inappropriate, since
it is a significant mental condition that may have future recurrence and worsening of
the same psychopathological state (Pérez Dávila, 2012).

The last paragraph contemplates the reversibility of the condition for at least one
year, which in the face of a judicial case creates a problem for the expert and the
judge, since a "provisional" percentage cannot be established as can be done until the
disability becomes definitive, but the medical expert, particularly the psychiatrist
with the assistance of a psychology professional, according to his experience and in

17
the face of the specific case, must give a clear option to the judge so that he may
determine the compensation, according to the circumstances of the case.

Grade IV cases require permanent assistance from third parties. Phobic neuroses and
hysterical conversions are the most disabling clinical expressions of this type of
reaction. Neurotic depressions can also be very disabling. Grants a 30% disability.

This level of disability is also considered very low, affecting the victim, compared to
such serious cases. It is the only case in which the definition of "permanent" is
incorporated, which should sharpen the vision and justification of its resolution in the
face of the specific case in the event of deviating from it, even in the special action
itself if this leaves the victim unprotected, since our Federal Court has established
that the worker is the subject of preferential protection in the employment
relationship in light of the protective principle of constitutional roots, contemplated
in art. 14 bis of the National Constitution.

An element that may be useful for the judge is provided by the DSM IV - known as
the "Diagnostic and Statistical Manual of Mental Disorders" - when he must resolve
a situation of treatment, recovery and/or rehabilitation, as he considers the difference
in time between acute and chronic symptoms, a dividing period of three to six
months, recognizing the acute in the period prior to the aforementioned and the
chronic in the subsequent period. The aforementioned Manual is particularly relevant
because it includes psychopathological conditions of international recognition
(Falcón E. 2006).

The scale known as “Castex and Silva” in my opinion provides more guiding
elements to the judge when he must evaluate and determine the psychological
incapacity of the victim of a harmful work event.

In addition to those mentioned, other severe criticisms have been made of the current
national scale applicable to the assessment of work-related disabilities and the list of
occupational diseases, approved by Decrees 659/1996 and 658/96, as regulations of
the Occupational Risk Law 24.557, confirmed by the recent Law 26.773 (BO
26.10.2012), which are declared mandatory for the competent administrative bodies
and courts, to which they must adjust their reports, not resulting in a happy rule since
the regime of the new law refers not only to the special action but also to that of civil
law, so that although it could be consistent for the first, it is not so for the second, in
which particularly the judge has the freedom to choose the scale according to the
circumstances of the case.

Particularly, the practical problems generated by two different laws to determine

disability are pointed out, one the LRT and the other the retirement and pension law,
the repealed Law 24241 (and Decree 478/1998) modified by Law 26417, which
approved the Integrated Pension System (SIPA) and which are interrelated, as
necessary appendices of a social security subsystem. In my opinion, this is why the
imbalance between the weighting factors of the LRT and the complementary and
compensating factors contained in Law 24241, which the previous one does not, is
rightly criticized, such as the increase in disability due to chronological age and the
level of formal education, to assess reinsertion into the workforce, factors that the
LRT does not include, violating the principle of equal treatment since each person
has only one disability to be assessed (Pérez Dávila, 2011). And, in the most relevant
part of the matter, the scale according to the aforementioned specialist doctor
benefits the Workers' Compensation Insurers (ART) and harms the worker who is the
victim of the damaging event, and the LRT scale contemplates meager percentages
of disability, placing arbitrary limits on the range, especially in the case of joint
injuries.

Psychopathological illnesses can be specific to psychology, psychiatry, or both, in

their variants of neurosis, psychopathy, and psychosis, contemplated in the
Diagnostic and Statistical Manual of Mental Disorders, the famous DSM IV of the
American Psychiatric Association.

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Regarding psychopathological disabilities, the scale of Decree 659/1996 establishes
that... "psychopathological illnesses will not be grounds for financial compensation,
since almost all of these illnesses have a structural basis" and therefore would be pre-
existing.

This provision implies that when the disability is assessed in an administrative

setting, complying with the procedure of the medical commissions, the ARTs do not
consider psychological consequences or consider them as a previous and blameless
basis, which has been described as "disloyalty to the worker" (Pérez Dávila, 2012).

The aforementioned Scale only recognises post-traumatic stress reactions or

disorders, neurotic abnormal experiential reactions, paranoid states and psychotic
depression that have a specific causal link related to an occupational accident (it does
not mention occupational diseases but it can be interpreted that they are included in
the phrase). Rule out all causes unrelated to this etiology, such as predisposing
personality, socioeconomic factors, family factors, etc.

The most commonly used assumption in court cases arising from occupational
accidents or illnesses is the neurotic abnormal experiential reaction (NAR) or the
neurotic abnormal experiential development (NAD), which is not defined in its
meaning and scope, leaving it in the hands of the expert involved, which is
undoubtedly another problem for the judge.

The harmful event originating from or linked to work marks a before and after,
determining the consequence and indicating the opposite response that attempts to
compensate for the disorder caused. RVAN are manifestations of residual neurosis
from post-traumatic stress (Pérez Dávila, 2012) and are related to events of that
nature, which occur at work such as accidents or as an eyewitness to them. It is
officially recognized by the DSM III and the ICD 10 (WHO), with an etiology, a
presentation and a course, a prognosis and a resolution.
The physical damage suffered by a person at work or with a causal connection to it is
usually accompanied by psychological damage, due to the changes that the victim
experiences in his or her intimate self and in his or her external, social and family
relationships. Pérez Dávila acutely points out that…”pain can cause physical
helplessness, but it is suffered and destabilizes the mood, as a negative psychic
experience” (obr.cit.2012).

The unfortunate outcome of the application of the system of Law 24557 in

Argentina, which, eight years after its sanction and with the national record of
unconstitutionalities, was disqualified in September 2004 as violating art. 16 of the
National Constitution that prescribes equality before the law in the famous "Aquino"
case (CSJN - Fallos: 327: 3753), the system was almost totally judicialized.

Specifically referring to the mental consequences of a harmful work event, it has

been the jurisprudence that has fully recognized the compensation for psychological
damage, even with the interpretation problems that the judge faces when faced with
the expert report.

The judge must issue a ruling in the specific case, since... "each case is particular and
requires particular consideration before the Law" as Professor Nerio Rojas said in his
famous mandates for the judicial expert (1953).

The scales are merely indicative, at least in the comprehensive reparation system,
and the judicial authority has legitimate powers to determine the existence or not of
incapacity, through the interpretation of arts. 386 and 477 of the CPCCN.

V. JUDICIAL EXPERTISE. CHARACTERISTICS. PROBATIVE VALUE.

Particularities of medical-psychological expertise.

to) Legal framework. Characteristics. Evidentiary value.

21
Section 6 of the Civil and Commercial Procedural Code of the Nation regulates the
evidence of EXPERTS, with articles 457, 464, 466, 467, 468, 469, 470, 471, 472,
473, 474, 475, 476 and 477 applicable to the labor process in accordance with the
provisions of Law 18345 on the Organization and Procedure of the National Labor
Justice. These rules are substantially reproduced in the Civil and Commercial
Procedural Code of the Province of Buenos Aires and are applicable to the oral labor
procedure in the territory of Buenos Aires in accordance with Law 11,653 and
special rules thereof.

If the assessment of the disputed facts requires special knowledge in any science, art,
industry or specialized technical activity, expert evidence may be proposed,
indicating the points on which they will issue a ruling. Experts will be appointed ex
officio in all cases and their number may vary from one to three, at the discretion of
the judge and in accordance with the nature or amount of the matter, circumstances
that will also be taken into account to set the time period within which they must
issue their opinion. Experts may be challenged for cause within three days of their
appointment. (art.91 L.18345)

The expert who, after having accepted the position, resigns without justifiable
reason, refuses to give his opinion or does not present it in a timely manner will be
removed by the judge, who will appoint another in his place and will condemn him
to pay the costs of the frustrated proceedings and the damages caused to the parties,
if they claim them (art. 470 CPCCN), with loss of the right to collect fees.

When the judge deems it necessary, he may order that another expert report be
carried out, or that the previous one be perfected or expanded, by the same expert or
another of his choice (art. 473 – 4th paragraph).

Any expert who fails to submit the supplementary or additional report within the
deadline, or fails to appear at the hearing scheduled in the case, will lose his right to
collect fees, in whole or in part.
At the request of a party or ex officio, the judge may request an opinion from
universities, academies, corporations, institutes and public or private entities of a
scientific or technical nature, when the expert opinion requires highly specialized
operations or knowledge. (art.476 CPCCN).

The probative value of the expert opinion will be estimated by the judge taking into
account the competence of the expert, the scientific or technical principles on which
it is based, the concordance of its application with the rules of sound criticism, the
observations made by technical consultants or lawyers and other elements of
conviction that the case offers (art. 477 CPCCN).

Judges retain a certain sovereignty over expert opinions, although it is not usual for
them to deviate from the expert's conclusions, even if they have that power, because,
especially in medical matters, they must have sufficient support from other records in
the case to take another path and resolve the case.

The judge cannot blindly accept the expert's postulates, whether they convince him
or seem absurd or dubious (Colombo and Kiper, 2006), under penalty of turning him
into a judge of the case, when he is nothing more than an assistant to the expert.

Even when the Judge has technical knowledge, the majority of the doctrine considers
it appropriate to resort to an expert opinion, since dispensing with the expert opinion
entails the risk of replacing someone who really has the technical knowledge to
illustrate the disputed issue.

The judge's decision to depart from the terms of the opinion must be based on
scientific grounds, which the Federal Court doctrine mentions as no less convincing
elements… "Although judges may depart from expert conclusions as long as they
have sovereignty in the assessment of evidence, in order to ignore them, at least
other no less convincing elements are required, which I do not find in the present

23
case"... (SCJN 1.9.1987 ED 130-335 DNN c/ CEJ"; "Trafilam SAIC c/ Galvalisi" JA
1993-III-52 Secc. Ind. N°89).

There are precedents in the labor jurisdiction of the National Chamber of Labor
Appeals, regarding the fact that when there are disagreements between the opinion of
the sole expert drawn ex officio and the report of the Forensic Medical Corps to
which the judge may exceptionally and reasonably appeal, preference must be given
to the report by the latter (CNATrab Chamber VIII 24.10.1990 JA 1991-III-316).

b) Particularities of medical-psychological expertise in matters of

occupational accidents. Jurisprudence

The Argentine occupational risk regime (Law 24557) contemplates the provisional
and definitive nature of permanent disability (art. 9), and although this is referred to
the tariff system of said special normative order, which gives an extensive period of
36 months to the provisional period extendable for 24 more months and which is
justified in the face of severe misfortunes of prolonged treatments and rehabilitation,
and which are certainly not the rule in the statistics of cases. However, it cannot be
ignored that in such cases, even if the civil reparation route is chosen, the judge may
have a parameter of analysis in said norms, or in the face of an action based on the
violation of the duty of security, provided for in art. 75 of the LCT.

Taking into account the considerations that we have been setting out, it is in my
opinion unavoidable that the medical expert, when establishing his conclusions,
clearly expresses the state of the victim at the time of the examination, the medical
and psychological history examined, the type of disability, partial or total, and the
percentage value assigned to it, based on the scales used that he deems appropriate
(Bonnet, 1980) and particularly in the case of proposing to the judge a periodic
psychotherapy treatment, its impact on the percentage of disability assigned.
In most cases of occupational accidents under national jurisdiction, the medical
expert is assisted by a report from a professional psychologist, and this is necessary,
although it does not occur in all cases, which causes delays in the face of challenges
or doubts because the appeal court must resort to an additional report to clarify the
issue.

Expert conclusions are vital, as Nerio Rojas (1953) pointed out in the ninth
commandment of his Legal Medical Decalogue (see documentary appendix)..."Not
only the thought, that is, the opinion must be very exact, in strict accordance with the
verifications, but the vocabulary must also be very precise and well-endowed.
Sometimes, one word can change an entire concept, or lend itself to an interpretation
that was not in the expert's mind. The art of conclusions, in addition to clarity,
consists of measure. You have to know the limits of what can be categorically
stated”…

In this way, justice will not run the risk of accepting a conclusion not justified by the
well-analyzed facts, said Professor N. Rojas.

This does not, however, exempt the Judge from the duty to independently examine
the factual reality, subsuming them within the legal norms that govern them.
Attribution that, being proper and exclusive to the jurisdictional function, leads to
disregarding the foundations and normative qualifications that the parties claim, even
when they agree on them; and that finds its only limit in respect for the principle of
congruence as stated above (Judgments 329:4372, 3517 cited in the case CSJN
2013/04/16 “Cómoli Daniel Alberto and others v. Banco de la Nación Argentina
s/dismissal”).

The precedents of the matter in cases where the judge requires more than one
medical opinion establish that ... the referral of the case to the Forensic Medical
Corps is a measure that depends on the initiative and judicial discretion, is of an
exceptional nature and is reserved for cases in which an opinion is so disputed as to

25
make the judge doubt its accuracy. ("Barboza, Mariana M. c/ Citytech SA and
another s/accident-civil action” 03/26/13 CNAT – Room IV).

The relationship between physical and psychological incapacity is a matter of

permanent debate these days, including regarding the application of various scales
when it comes to civil actions for work-related misfortunes…”In relation to the
degree of incapacity, it corresponds to the percentage of 13% determined in the
medical expertise and 15% determined in the psychological expertise - since it is not
refuted by the appellant - because the scales that quantify disabilities do not
constitute a rigid rule - which must be applied by means of simple arithmetic
operations - but only a guide to estimate the decrease caused by a certain illness in
each particular case. (cfr. Chamber IX, ruling of 9/24/01 in re "Salvador v. ABB
Medidores SA without dismissal" and MARTELLINI José E. c/ NATIONAL
STATE FEDERAL PENITENTIARY SERVICE and OTHER s/Accident-Civil
Action” CNAT 02/15/2011- Room I)

And this highlights the role of the judge as seen… “It is the judge who has the
exclusive power to establish causality/concausality and, although - in principle - he
must start from the medical expertise when it has scientific rigor, the judgment of
causality must be completed with all the evidence submitted in the case, the expert's
assessment not being sufficient for this purpose, given that he has not personally
verified the working methods and conditions” (CAMPOS Mariela G. c/NACION
SEGUROS DE VIDA SA AND ANOTHER s/ACCIDENT-CIVIL ACTION”
CNAT Room I - 10/25/2011).

Likewise, the Chamber that I am a member of is categorical in requiring the medical

expert report as a prior to issuing a decision in a conciliation with a request for
approval... "It cannot be maintained that a fair composition of rights and interests of
the parties has been established in the terms of art. 15 of the LCT, due to the lack of
impartial technical advice, in accordance with the provisions of articles 91 and 92 of
Law 18,345. Therefore, a better provision measure should be issued so that, after
examining the actor and carrying out the relevant studies, the medical expert to be
selected in the proceedings may issue a ruling on the percentage of work disability,
its qualification and its relationship with the accident reported in the complaint,
sending the proceedings to the court of origin for such purposes"... ("ARCE Ramón
R. c/ Occupational Risk Prevention Insurance Company SA s/Accident - Special
Law” 25.8.2011 - Chamber VI CNAT).

VI. CONCLUSIONS.

1. The new forms of work organization that seek results under what has been
called the “management sciences” put the health of workers at work at risk, in
addition to the high percentage of workers in informal employment in Argentina.

2. Faced with this reality, we can only insist on the struggle to achieve dignified,
decent work and its protection, applying international standards on health and safety
at work, since the human person is the center of protection, and not an object of the
market, or in other words, it is the essential key to the social question, which does not
admit postponement in the face of the logic of productivity.

3. Psychic damage is constituted in relation to an injury, trauma or lesion of

sufficient magnitude for this.

4. Argentine doctrine and jurisprudence in the recognition of psychological

damage with compensatory entity, which was initially included in the concept of
non-patrimonial or moral damage and today is already part of psychopathological
incapacity, as patrimonial damage, constitutes both, a notable evolution for
occupational health and safety, as well as for occupational medicine, from an
interdisciplinary perspective.

27
5. It is encouraging that the ILO, when updating the list of occupational
diseases, has included post-traumatic stress disorder, as a result of exposure to a
series of extremely violent or stressful situations or events to which many workers
may be exposed.

6. Given the existence of different scales for assessing work-related disabilities,

and the questions raised by occupational medicine regarding the table approved by
Decree 659/1996 of the Argentine Occupational Risk Law system, it is necessary for
the Judge to maintain the freedom to choose the one that best adapts to the particular
circumstances of the case, from a perspective of protection of human labor.

Dr. Luis A. Raffaghelli

Judge of the National Chamber of Labor Appeals
Room VI Bs.As. Argentina - University Professor of Labor Law
[email protected]
luisraffaghelli.blogspot.com
Literature

BERMANN Sylvia. “The study of Mental Health in relation to work” In: for
research on workers’ health. Washington: PAHO. 1993 p. 190 et seq.
BONNET EFP “Forensic Medicine” ag. 774 et seq. 2nd Ed. Bs.As. 1980. Lopez
Booksellers Publishers Bs.As.
CAPON ROWS Rodolfo Ernesto. “Labor Law” p.33 et seq. Ed. Platense 1998.
CASTEX, Mariano N. “Towards a definition of psychological damage” in Updates
in Forensic Medicine and Psychology, No. 3, National Academy of Sciences of
Buenos Aires, 1989/90.
CASTEX, Mariano N. and SILVA, Daniel H. New Scale. Forensic Psychodiagnosis
Study Group – Scales – Psychic Damage – Disability (1.9.2011)
CASTEX Mariano N. “Psychological Damage and Other Forensic Issues” Ed. Tekné
Forensic Psychology Collection (Bs.As. 1997).
CUADRA PORTILLO Gabriela “Work disability due to pain from a medical
perspective” Rev. Labor Law and Social Security page 25, Bs.As. January 2012.
COLOMBO Carlos J. and KIPER Claudio M. Code. Proc. Civ. and Com. of the
Nation commented and annotated. T.IV p.445 et seq. Ed. LL 2006.
DEJOURS Cristophe “Job at risk. “The new world of work” Interview in Cash
Supplement. Page 12 (Bs.As. 2.12.2012).
FALCON Enrique M. “Treaty on Civil, Commercial and Family Procedural Law.
T.II vicissitudes of demand. Opposition. Proof. Page 1128 and following. Rubinzal
Culzoni Editores, 2006.
MEDINA Graciela and GARCIA SANTAS Carlos. “PSYCHIC DAMAGE. Journal
of Tort Law (2009-3).
PEREZ DAVILA Luis A. “Scales. Its use. Its scope in validity” Part I-Labor Law
and Social Security Journal No. 19, page 1694 et seq. October 2011. Same as Rev.
Cit. Part II “The faults of the Baremo” No. 11, June 2012, page 933 and following.
RAFFAGHELLI Luis A. “Workplace risks: preventing, reducing and repairing.”
References on the issue in Argentina” IV Entre Ríos Congress on Labor Law. Paraná
June 3, 4 and 5, 2010.

29
ROJAS Nerio. Medico-legal Decalogue. Commandments for an expert. Editorial
Prof. Dr. Nerio Rojas. Forensic Medicine. The Athenaeum, 1953.
SAN JUAN Claudio “Workers’ health and safety on the international and local
agenda. Argentina ratifies two relevant agreements. Rev. Der. Labor and Social
Security page 1318. Bs.As. July 2013.
SCHICK Horacio “Guidelines for establishing compensation for work accidents
based on civil law” Presentation at the VI National Congress of Labor Law -
Argentine Society of Labor Law MdP 7-11-2009.