Incapacity for work

Our Employment Lawyers, specialised in Employment Law, will be able to offer you our professional services in the processing and claim as a consequence of an incapacity for work.

If you wish, in addition to being attended in our Law Firm in Madrid, we offer you the possibility of our Labour Lawyers attending you in our offices in Pozuelo de Alarcón and Majadahonda.

Incapacity for work

Incapacity for work

Permanent incapacity is regulated in the current General Social Security Law and includes four degrees: Partial Permanent Incapacity, Total Permanent Incapacity for the usual profession, Absolute Permanent Incapacity for any profession or trade, and Severe Disability.

In the case of civil servants included in MUFACE, the applicable legal regime is different from the above, and only contemplates the so-called Retirement due to Permanent Disability.

The Courts and Tribunals are correcting the restrictive criterion maintained by the Administration when it comes to recognising Permanent Incapacity benefits, but for this to happen, claims must be presented in a well-founded manner and supported by medical reports that accredit the worker's limitations and their influence on the work environment.

There comes a time when every worker suffers an incapacity for work. This may be caused by a simple cold or by a much more serious illness or accident. All these situations are regulated by law. Here we would like to talk to you in depth about this.

What is meant by incapacity for work?

Incapacity for work is defined as a situation in which a worker is unable to perform the functions associated with his or her job. This situation may be temporary or sustained over time. This is the reason why the law contemplates two main types of incapacity.

Temporary incapacity

Also known as temporary or simply medical leave. This is a situation in which the worker is unable to perform the tasks associated with his or her job on an ad hoc basis. It is a sine qua non requirement that he/she needs medical care, whether as a result of a common or occupational illness or an accident at work or in the workplace.

The maximum period of time for which a worker may be on sick leave due to temporary incapacity is 12 months. However, if the doctors responsible for your treatment foresee an imminent recovery, it is possible to extend this period by a further 6 months. In other words, up to 18 months from the time of the causal event or diagnosis.

In any case, once these 12 or 18 months have elapsed, depending on the case, the INSS (Instituto General de la Seguridad Social) will decide whether the worker is ready to receive medical discharge and return to work or whether, on the contrary, the temporary incapacity has to be converted into permanent incapacity. We will discuss this later on.

If the temporary incapacity is due to an occupational disease, the legislation provides for a period of observance. Its maximum duration is 6 months, although, as in the previous case, it is possible to extend it for a further 6 months if necessary.

During the entire time that the worker is on sick leave due to temporary incapacity, his/her employment contract is suspended. In addition, he is entitled to a financial benefit of 60% of his regulatory base in the event of a common illness or non-occupational accident, or 75% if he has suffered an occupational illness or accident. In addition to this entitlement, you are obviously entitled to any health care you may need for treatment and recovery.

Permanent incapacity for work

There are health problems that, after more than the 12 or 18 months mentioned above, still do not allow the worker to resume the tasks associated with their professional activity. In this case, the INSS may consider it appropriate to consider the worker to be in a situation of permanent incapacity.

Permanent incapacity is generally associated with severe functional and/or physiological reductions that may even last a lifetime. These must have the effect of reducing or completely eliminating the individual's capacity to work.

Obviously, in addition to the health care that the worker needs for the duration of the treatment, the INSS provides a contributory financial benefit to alleviate the loss of income of the affected person.

The amount of this benefit will depend, fundamentally, on the degree of permanent incapacity granted to the patient by the INSS after the relevant review by the medical tribunal. Specifically, permanent incapacity for work can be classified as follows:

  • Partial permanent incapacity. To be considered as such, the illness or accident must cause a reduction in normal performance of not less than 33% of the worker's total capacity. This percentage does not prevent the person from carrying out the basic tasks of the profession, so that he/she can continue to perform them. This classification entails a lump-sum payment of 24 monthly payments.
  • Total permanent disability. The reduction of the worker's capacities makes it unfeasible for him/her to continue carrying out his/her usual profession. However, he/she may be able to carry out a different one. If granted, the worker will receive a lifetime benefit corresponding to 55% of his regulatory base. In addition, this benefit is compatible with salary from another job.
  • Absolute permanent disability. This is a type of permanent incapacity that makes it impossible for the worker to carry out any profession. This is why, for life, he/she will receive a pension of 100% of his/her regulatory base. However, there are exceptions where it can be combined with income from work. This is the case, for example, for many ONCE coupon sellers.
  • Major disability. This is not a type of permanent disability, but a complement to the absolute type. For it to be granted, the disabled person must require a carer to carry out their daily tasks. In other words, he/she is not able to take care of him/herself. It entails an increase of 45% of the SMI (Minimum Interprofessional Wage) over 100% of the regulatory base received in the benefit.

It should be noted that the accreditation of permanent incapacity is subject to review. For better or worse. In other words, an incapacitated person can request, for example, the change from total to absolute permanent incapacity, but the INSS can also reduce its consideration to partial.

In any case, the advice of a lawyer specialising in labour law is essential when dealing with any application for permanent disability. Only through him or her is it possible to guarantee the rights of the affected party in the best possible way.

Disability claim

It is advisable that the application made to the INSS to claim benefits for Permanent Disability is supported by medical reports that reflect in detail the pathologies suffered and the limitations that these generate in relation to the work activities carried out, or in relation to any work activity, in this way, we will even have the possibility of the application being upheld in whole or in part by the Social Security and, if it is denied, we will have gone a good way to continue the battle in the judicial sphere.

These are not simple processes, and on many occasions it is necessary to go to higher courts to achieve the desired result, but I must admit that the professional satisfaction one feels when one sees that the effort made has served to ensure that the client who came to the office one day in desperation at least obtains the peace of mind that comes with having part of their economic needs covered, without forgetting that these types of benefits are not a gift from the Social Security, as they are the result of the contributions made by the workers who cover these contingencies throughout their working lives.

In a situation of incapacity for the normal performance of work, the first option is Temporary Incapacity, with a general maximum duration of 18 months, which is used in those cases in which the worker suffers from limitations of a temporary and not definitive nature, using the periods of Temporary Incapacity with the aim of recovering the capacity to work. In the event that the limitations resulting from the pathology/s suffered are of a chronic or presumably definitive nature, or if after the general maximum period of 18 months the worker has not reached working capacity, we would be in the field of Permanent Incapacity.

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