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.
Differences between permanent and absolute disability
Article 194 of the same law distinguishes four degrees of permanent disability:
For the purposes of this article, we will focus on the most common ones, which are those of the environment: total and absolute permanent incapacity, since in the environment is virtue, as a punishment would say. Well, the first refers to the situation in which a worker, due to the occurrence of certain ailments, is prevented from carrying out his usual profession, but not any other. On top of that, the declaration of absolute permanent incapacity prevents that worker, being affected by more serious ailments than in the previous situation, from carrying out any type of work activity.
The declaration of total or absolute permanent incapacity has economic effects on the worker concerned, which are reflected in the receipt of a life pension, the quantum of which varies according to the degree of incapacity declared. In the first case, the worker would receive a financial benefit of fifty-five percent of the regulatory base, and in the second case, one hundred percent. These are broadly the most significant differences between these two situations.
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The conditions for entitlement are set out in the Act (Article 195) and relate mainly to the qualifying period required by the social security legislation. In addition to being registered or in an assimilated situation as indicated above (article 165 LGSS) and logically suffering from those characteristic ailments that prevent them from carrying out their profession or any work activity.
Persons declared to be permanently incapacitated will be entitled to an annuity ranging from fifty-five percent for taxpayers of the total degree, through seventy-five percent for those over 55 years of age in certain circumstances of a social and employment nature that make it difficult to obtain employment (this is the so-called total qualified degree), to one hundred percent for beneficiaries of absolute permanent incapacity.
It can be initiated ex officio by the administration or at the request of the party concerned. It would begin with the submission of an application to the appropriate social security body or the corresponding occupational insurance fund in the case of a professional contingency, accompanied by the national identity card, family book and medical reports on which the applicant bases his claim, preferably from the public health service because of its impartiality vis-à-vis the opinions issued by private health service doctors which are more partial in nature.
The interested party will be summoned to undergo a medical examination before the disability assessment team, which will issue a proposed opinion on whether or not to recognise the situation of permanent disability. Before this report can be issued, a claim must be filed with the competent Social Security body and/or the mutual insurance company, which may or may not accept it. In the event that the claim is rejected, it will be referred to the competent social court, where, depending on the difficulty of explaining the applicant’s complaints and the tasks performed in his job, it will be important to assess the intervention of a medical expert to clarify the first point and an ergonomist to clarify the second.