Case 337/2007

DA SILVA, Alexandra v. BANK STATE INSURANCE. Writ of Amparo (F.2-13142/2007)
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Appellant alleged she suffered a work-related injury resulting from her exposure to the toxic chemical Cyclohexanone causing dysphonia which left her virtually unable to speak for nine months and unable to work. Banco de Seguros del Estado (state insurance company) reviewed her case and found that she was not suffering from an occupational health disease as there was no causal link between appellant’s dysphonia and exposure to Cyclohexanone and refused coverage and referred her instead to Direccion de Seguros Sociales port Enfermedad (DISSE) (handles social insurance for those with health conditions).

The Appellant brought an amparo action to classify her illness as an occupational harm, but was rejected by the lower court as an amparo was “not appropriate to analyze the merits of an issue for which there exist legally established procedures and remedies….” Appellant appealed to the instant Court claiming she needed a rapid response to her complaint, which the normal appeals process could not give her. Appellant contended that she was entitled to use this special judicial proceeding because writs of amparo are designed to provide legal remedies where existing judicial or administrative methods are inefficacious.

The Court upheld the judgment of the lower court.

The Court held that the writ of amparo’s usage must be limited. The writ of amparo should be used in cases where a specific right has been violated due to a clearly illegitimate action or omission and no further research is needed. In this case, the Court found no specific right being violated, nor clearly unlawful conduct, and as the BSE’s decision was backed by technical reports, the appellant’s claim was neither categorical nor clear. The Court noted that the appellant had the right to appeal the BSE’s decision through normal legal methods and that she received medical care regarding her health complaint “so her fundamental right to health has not been violated.”

“También se ha dicho que la exigencia del requisito de la ilegitimidad manifiesta tiende en el sistema de la ley No.16.011 por un lado a restringir el uso de la vía excepcional del amparo, y por otro, resulta indispensable en un proceso rápido que no amerita más que una cognición sumaria, que resulte clara dicha ilegitimidad y surja del acto mismo o del expediente, a través de una prueba sumaria. (Cf. Véscovi, "Principales perfiles del amparo en el Derecho Uruguayo", RUDP No.4/90). Es indispensable que el asunto no requiera mayores investigaciones, y sobre todo, que se encuentre al margen de toda controversia seriamente fundada. Si ésta existe, salvo que sea arbitraria o maliciosa el amparo no procede. La situación debe ser nítida, categórica, evidente, por encima de toda duda razonable. No se debe decidir mediante este procedimiento cuestiones susceptibles de mayor debate y que corresponde resolver por los procedimientos ordinarios.” (p. 3)

“It has also been said that the demand for the manifest illegitimacy requirement in the system of law No 16.011 tends on one hand to restrict the use of the exceptional action of amparo; on the other hand, it is essential in a quick process that does not deserve more than a summary cognition that the illegitimacy be clear and arising from the act itself or from the case file, through summary evidence. (Cf. Vescovi “Main profiles of amparo in Uruguayan Law,” RUDP No.4/90). It is essential that the matter does not require further research, and above all, that it be found out of seriously founded controversy. If it does exist, unless it is arbitrary or malicious, amparo does not apply. The matter should be clear, categorical, evident, and beyond all reasonable doubt. It must not be decided through this procedure questions open to bigger argumentations and that should be solved by standard procedures.” (p. 4)

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