Absolute permanent disability due to fibromyalgia. Favourable judgement

Severe fibromyalgia is difficult to diagnose accurately, but when it does occur, it usually results in a series of very problematic symptoms that prevent the sufferer from carrying out normal daily activities. Obviously, this also affects their performance at work, and they often take time off work. However, this type of patient can be congratulated because there is a favourable judgement of absolute disability for them that can serve as a precedent for others. Let's take a closer look at the matter.

What is severe fibromyalgia?

Fibromyalgia is defined as a chronic disorder of the musculoskeletal system that appears due to unknown causes and has a variable evolution depending on the person affected. However, in virtually all cases it leads to a decrease in work and personal productivity, often resulting in a variety of disabilities. In fact, some studies indicate that up to 50% of affected patients have to stop working because of this health problem.

Fibromyalgia favourable rulings: what the law says

Firstly, the National Social Security Institute's recognition of fibromyalgia is usually mistaken. This is because patients diagnosed with fibromyalgia are recognised as being temporarily incapacitated, which has a maximum duration of 12 months, extendable for a further 6 months if there is a possibility that they can be discharged during that time.

However, as we said earlier, fibromyalgia is a chronic disorder, i.e. not only is there no cure, but it tends to get worse over time. The only thing that doctors can do is to offer palliative treatments focused on reducing the pain and the rest of the symptoms that the subject suffers with the aim of making life more bearable.

Therefore, a disability due to fibromyalgia cannot be compared, for example, to a disability due to a herniated disc, as this is a health problem with treatments aimed at curing it and which usually have positive results in a large number of cases.

Absolute permanent disability in people with fibromyalgia

The aggravation of the symptoms of fibromyalgia caused by its chronic nature means that many people, in addition to having to give up their jobs, seek recognition by the National Social Security Institute that they are permanently unable to work. This is a situation closer to the real condition of these subjects.

What does recognition of absolute permanent incapacity entail?

If the National Social Security Institute or a competent judge considers that the patient suffering from fibromyalgia is subject to this type of incapacity, he/she will be entitled to receive a pension corresponding to 100% of his/her regulatory base multiplied by 14 monthly payments (12 ordinary monthly payments and 2 extraordinary payments in the months of July and December).

In addition, the subject will be entitled to apply for the condition of great validity, although there are few precedents for its concession in this type of case. In total, this could mean the payment of a supplement of more than 45% of the total regulatory base. However, in order to obtain it, it would have to be demonstrated that the patient is incapable of looking after himself and that he needs special care.

Procedure for obtaining recognition of absolute permanent incapacity for fibromyalgia

As we have already mentioned, although there are already favourable rulings for fibromyalgia that recognise the patient as permanently and absolutely unable to work, the subject must wait 12 months in a situation of temporary incapacity and, if the National Security Institute deems it appropriate, another 6 months in this situation. Once this period has elapsed, the National Security Institute can grant a further 6 extra months to await the recovery of the affected person or initiate a Permanent Incapacity File.

Through this Permanent Incapacity File, the fibromyalgia patient will be assessed by a Medical Tribunal, which will be responsible for determining the degree of disability and whether he/she should receive this type of incapacity.

Based on what has happened in recent years in this type of case, it is normal for the Medical Court to deny the patient's request for absolute permanent incapacity. At this point, the individual must take the following steps:

File a formal complaint against the Medical Tribunal that carried out the disability assessment with the General Institute of Social Security.
If this claim is rejected, he/she can file a lawsuit with the Social Security Court that corresponds to his/her place of residence.
If that claim is also rejected, you can still make a final appeal to the High Court of Justice of the autonomous community in which you live.

Unfortunately, there is no appeal against the decision of the High Court of Justice in this type of case.

Favourable judgement for absolute incapacity

During the month of November 2017, a ruling very favourable to the interests of people with fibromyalgia was made public. Specifically, it was published by the Social Court No. 4 of the province of Cordoba and it rectified the situation of total permanent disability granted by the National Institute of Social Security to a patient affected by this disorder to convert it into a permanent total disability.

Initially, the Medical Court limited itself to observing that the claimant had psychological and emotional disorders, but without making direct reference to fibromyalgia and omitting certain pathologies that made her unable to work, such as a disability due to a herniated disc that led to chronic cervical pain, loss of vision in one eye and a nerve entrapment.

However, the judge of the Social Court did consider these symptoms and, on the basis of the medical reports provided, related them to fibromyalgia, thus recognising it as a common illness and enabling the patient to obtain the degree of permanent total incapacity. In fact, the judgement itself states that the lack of restorative sleep and the resulting daily fatigue render the person incapable of performing any work task indefinitely.

In view of this, it is not surprising that more and more fibromyalgia patients are taking the initiative to file claims before the Social Security Court in order to modify the situation of incapacity recognised by the National Institute of Social Security. A process that is usually long but which also tends to allow these people to enjoy an incapacity regime that is truly in line with their personal and work situation.