The Supreme Court confirmed the sentence handed down by the Court of San Miguel, which accepted the appeal for protection brought against the Carabineros Social Security Directorate (DIPRECA) by an official who suffers from a brain tumor.
The Court of San Miguel states that, having detected an 8-centimeter brain tumor in the actor in 2018, the Medical Commission of the Dipreca Preventive Medicine Service, resolved to grant him discharge from preventive rest due to unrecoverable health for the service, to be counted from January 1, 2021, and accept it for second-class disability.
It adds that the respondent is a body whose objective is to attend to its affiliates under the modality of preventive and recuperative medicine, in the terms of articles 5 and 6 of Decree No. 1,082 of 1995 of the Ministry of Public Health and Social Welfare; and 1 of Law No. 6,174. Consequently, it considers that the respondent has only made a technical decision, that is, declaring the patient as irrecoverable for the service, granting him discharge from preventive rest and proposing that he should benefit from second-class disability, a decision that could be made by another body. namely, the Central Medical Commission of the Carabineros.
However, it states that the contested decision had as a precedent the opinion of the plaintiff’s treating neurosurgeon, who proceeded to complete the respective form, communicating his opinion, as to the fact that he was not suitable for the service or for the reinstatement of his functions due to terminal illness, requesting in this regard the processing of their retirement. However, after the contested resolution was issued, the same professional proceeded to issue a new certificate proposing the performance of a new surgery requesting to maintain preventive rest until its completion, for which, before dissimilar criteria, his leadership requested a final pronouncement , through which he ratified that the patient was not suitable for return to work, poor short-term prognosis and that it was not appropriate to continue on preventive rest, requesting to carry out the process of disability due to physical disability.
It adds that Law No. 6174 provides that preventive rest will last for the time determined by the respective Medical Commission, which may not exceed one year and that it may be renewed as many times as deemed convenient, arguing that no limit is established for use. of preventive rest.
On the other hand, it stands out that the actor completed more than 33 years of service, without having had any reproaches regarding the payment of his contributions to belong to DIPRECA, which beyond the legitimate differences of interpretation, there are no doubts as to that the affiliate deserves the protection of the agency that he helped to maintain through his periodic payments.
Consequently, it considers that, although the final decision is adopted by the Central Medical Commission of the Carabineros, what is concluded by the respondent constitutes a threat to the rights to health and physical and mental integrity of the actor, since it prevents him from performing the surgery ordered by the treating physician, who was there because it was carried out, even though he later changed his mind and indicated that the disability procedure due to physical disability should be carried out.
Additionally, it states that what is proposed by the respondent implies that the plaintiff would have to go into retirement, with what this implies regarding the treatment that must be carried out in a difficult and costly moment, in circumstances that the institution should take charge of his situation and keep it in the preventive medicine system, not only because of the constitutional rights that have been put at risk, but also from a professional and human point of view.
In short, it accepted the protection appeal against DIPRECA and ordered him to keep the actor under the preventive medicine regime, covering the expenses of the medical treatment and the surgeries he required, as ordered by the treating physician; decision that was confirmed by the Supreme Court in appeal.
See judgment of the Supreme Court Rol No. 41.312-2021 and Court of San Miguel Rol No. 49-2021.