Incapacity for work: types, degrees and how to apply for it

Incapacity for work is the state in which a worker who is not yet of retirement age suffers a health problem that prevents or hinders him/her from carrying out his/her professional (or any other) activity normally. However, the law lists different types and degrees, which can cause some confusion. Is this the case for you? Read on and find out all you need to know about it.

Types of incapacity for work

Different types of incapacity for work can be distinguished according to different criteria. Let's take a look at them.

Cause of incapacity

All types of incapacity for work are caused by common contingencies or occupational contingencies:

• Common contingencies: these are illnesses and accidents that the worker suffers outside the workplace and which are not related to their professional activity. This would be the case, for example, of the flu or a broken bone while doing a sporting activity.
• Occupational contingencies: in this case, we are talking about illnesses and accidents that occur in the workplace or are directly related to the professional activity. For example, cutting a finger on a machine or developing a type of cancer due to prolonged exposure to a certain substance.

Degrees of incapacity for work

Obviously, not all common and professional contingencies are the same. While some are cured in a few days, weeks or months and leave no after-effects on the worker, others prevent full recovery. Therefore, at this point we have to talk about temporary and permanent incapacity.

Temporary incapacity

This is what is popularly known as medical leave. It occurs when, as a result of a common or professional contingency, you are unable to work. It comes into effect on the fourth day and must always be provided by a Social Security primary care doctor.

Temporary incapacity leave has a maximum duration of 12 months, although it can be extended for up to 12 months (in two periods of 6 months) if you are expected to be able to recover within this period or if there are delays in presenting yourself before the Medical Court to obtain permanent incapacity.

If the temporary incapacity is caused by a common contingency, you will not receive any of your salary for the first three days, unless the agreement to which your company is subject states otherwise. Between the 4th and 21st day you will receive 60% of your regulatory base, while from the 21st day onwards you will receive 75%. The Social Security will normally pay you, but the mutual insurance company may also do so in certain circumstances.

If the temporary incapacity is due to an occupational contingency, you will receive 75% of the regulatory base from the first day. The mutual insurance company will be responsible for paying you in all cases during the time you are on sick leave.

Permanent incapacity

Once you have exceeded the maximum period of temporary incapacity provided for by law (remember: 24 months), you will have to return to your job or receive permanent incapacity. You will have this right if the common or occupational contingency you suffered has resulted in a serious functional or physiological reduction that hinders or eliminates your ability to work, either doing the specific activity you did before or any activity in general.

However, not all permanent disabilities are the same. There are four types that you should be aware of:

• Partial permanent incapacity: this occurs when the worker can continue to carry out his or her usual occupation, but with a reduction in performance of at least 33%. This entitles the worker to receive a lump-sum benefit equivalent to 24 monthly payments of their regulatory base.
• Total permanent incapacity: the worker is unable to carry out his/her usual occupation, but may be able to carry out other occupations. In this case, they are entitled to receive a monthly benefit equivalent to 55% of their regulatory base if they are under 55 years of age and 75% if they are over that age and are not carrying out any other paid activity.
• Absolute permanent disability: the worker is unable to do any kind of work. In this case, they are entitled to receive a monthly benefit equivalent to 100% of their regulatory base.
• Severe disability: in addition to being unable to carry out any professional activity, the worker must require assistance from third parties in order to carry out daily activities. If this happens, they will receive not only 100% of their regulatory base, but also a supplement of 50% to compensate for this.

But what is the usual occupation? In the case of a common contingency, the one you have been carrying out for the last 12 months. In the case of an occupational contingency, the one you were carrying out at the time of the accident.

How to request incapacity for work?

As we have already said, the procedure always begins with a temporary incapacity or sick leave, which must be granted by the Social Security primary care doctor or by the mutual insurance company's doctors, depending on the type of contingency involved.

Once the maximum periods stipulated by law (12 months, extendable for a maximum of 12 months) have elapsed, you will have to go to the Medical Tribunal. This procedure is usually initiated ex officio, as it is the doctors or mutual insurance companies that bring the worker's specific case to the attention of the Medical Inspectorate. However, it can also be initiated by sending a request to the Ministry of Social Security.

The Medical Inspectorate, on the basis of the reports submitted and the study of the specific case, will determine whether the worker is fit to return to his/her job or whether he/she is entitled to permanent incapacity, and to what degree. This is known as the administrative route.

If you do not agree with the Medical Inspectorate's decision, you can challenge it in court. This process can take much longer and requires the services of a labour lawyer, but it pays off if you end up winning the appeal.

This is all you need to know about the types of incapacity for work and the percentages that are paid. If you still have any questions or need legal advice on the matter, please do not hesitate to contact us. We have a large team of lawyers specialising in incapacity for work who are ready to help you with whatever you need.