Disability Lawyer Gijón

Permanent Disability

Permanent incapacity is defined in Article 193 of the General Law on Social Security as follows “(…) Permanent contributive incapacity is the situation of the worker who, after having been subjected to the prescribed treatment, presents serious anatomical or functional reductions, susceptible of objective determination and foreseeably definitive, which diminish or annul his working capacity. This does not preclude the possibility of the disabled person recovering his or her working capacity, if this possibility is considered medically uncertain or long-term (…).

This concept revolves around two circumstances: ailments that the individual presents and their incidence on his or her working capacity. These could have arisen both from an illness suffered by the worker and from the fact of having suffered an accident in his or her work environment or outside it.

The modality that we are going to deal with is the contributory one, that is, derived from a situation of registration or assimilation in the General Social Security Regime that differs from the purely welfare one that would give rise to a disability (also called, until a few years ago, a disability). The most important distinction between both situations is that the first is interrelated with work, and the second only takes into account the ailments, regardless of whether the person suffering from them is a worker or not.

This is a situation of a permanent nature, thus distinguishing it from the temporary incapacity commonly known as “sick leave”, which covers through a daily benefit, in a transitory manner, the impossibility of working for the subject during a determined period of time.

The main problem that arises for the person concerned in obtaining recognition of permanent incapacity is the difficulty of proving these “serious anatomical or functional reductions that can be objectively determined and are likely to be definitive”, as referred to in the article in question.

Note the degree of subjectivity and partiality of these opinions drawn up by the administration, which rarely grants rights to the administered person and the disadvantaged situation of the latter, since in practice the courts have been recognizing the proposed opinion of the EVI as a dogma of faith, impossible to refute in court by the applicant’s lawyer, despite the combative nature of these opinions in defense of the rights of their clients.