Permanent incapacity

Permanent disability is one of the issues that many workers are most concerned about. After all, at all times we are subject to suffer any mishap that prevents us from continuing to carry out the activity to which we have dedicated our whole lives forever. As lawyers specialising in employment law, we want to tell you everything you need to know about this.

What is permanent incapacity?

Permanent incapacity should be defined as the situation in which a worker, either because of illness or injury, can no longer continue to work. In other words, it is a condition that disables the worker from continuing to carry out his or her occupation. As an important detail, it must be said that this type of incapacity does contemplate that the subject can carry out others, so it is not synonymous with absolute disability. This is something that must always be taken into account and that leads to error very often.

Who can be the beneficiaries of this type of incapacity?

The law establishes that any person who is not of retirement age or, failing that, does not meet the conditions for a contributory pension and who is affiliated with, registered with or assimilated to registration with the Social Security, is entitled to permanent incapacity. These last two requirements are not taken into account if the problem arises after 15 years of contributory work and at least 3 of the last 10 years of contributory work, provided that it is due to a common illness.

If the permanent incapacity is due to an accident at work, no contribution period is required. Still on the subject of common illness, if the worker is under 31 years of age, he/she must have paid contributions for 5 years and one of the last ten years or more after reaching the age of 16.

What is the causal event?

The causal event, as its name suggests, is the event that gives rise to the permanent incapacity. However, in terms of date, it may not be understood in exactly this way. In fact, if the illness or accident that triggers it gives rise to a medical leave of, at most, 18 months, it is established that this takes place when the temporary incapacity ends.

In the event that it occurred in a situation that was not one of registration or assimilated to registration with the Social Security, the date of the triggering event will be established at the time the application is submitted. Lastly, if the application is submitted to the authorities when the temporary incapacity has not yet ended, the date is determined by the medical tribunal.

The medical tribunal

We have just mentioned the medical tribunal, and it is undoubtedly the most important body in the process of granting permanent incapacity. In this regard, once you have submitted the permanent incapacity form, Social Security contacts the claimant to let him/her know the date on which he/she will have to meet with a doctor and undergo an examination.

It is important, at this stage of the process, to submit all the reports and documents you have, except those that are already part of your medical records. On the basis of these and the examination he/she carries out, he/she will send a report to the Disability Assessment Team, which usually accepts it in all cases. In fact, this is a mere formality. However, it may take up to 135 days for the tribunal's decision to be notified.

What amount is payable for permanent incapacity?

It depends on the case. If the permanent incapacity is caused by a common illness, the person who is granted permanent incapacity is paid 100% of the regulatory base. If it was caused by an accident at work or an occupational disease, this percentage can be increased by 30-50%.

But how is it calculated? It is very simple. It is done by the National Social Security Institute, which divides the contributions made by the worker during the 96 months prior to the causal event by 112. The result is what the claimant will receive.

Of course, there is a maximum and a minimum, which are established each year in the General State Budget. Obviously, for this reason, it is impossible to give an exact amount but, as a guide, we will tell you that a person with permanent incapacity receives, depending on whether he or she has a dependent spouse, no spouse or is independent, respectively, €11044.60, €8950.20 or €8493.80 per year as a minimum in 14 payments. At present, the maximum is fixed at €2,580.13 per month. None of these payments are subject to personal income tax deductions.

Is it reversible?

Yes, it is. In fact, in the notification of the decision issued by the medical tribunal, the interested parties can read a sentence that says something like "from the date XX/XX/XX/XXXX, the INSS may review your application". Obviously, this means that the Social Security reserves the right to do so or not.

But, in addition, there are several cases in which the suspension may be possible. For example, if the worker has acted fraudulently in order to obtain it or if the permanent incapacity is proven to have been caused by the worker's fault, it can be stopped. The authorities also retain the right to do so if the beneficiary refrains from undergoing rehabilitation treatment prescribed by a doctor.

The permanent incapacity benefit may also be terminated if, on review, the court rules that the person is fully cured. It is also terminated by the death of the person concerned or if he or she chooses to take his or her retirement pension when the time comes.

Is it incompatible with any type of work?

Absolute incapacity, by definition, is compatible with work as long as the activity in question is not the one that the subject was doing before, that is, the one for which he/she has been disqualified. However, in order to be able to return to the labour market, it is necessary to notify the National Social Security Institute and to be registered by the employer who wishes to hire him/her. This body retains the right to decide whether the tasks to be carried out are compatible or not with the situation in which he/she finds himself/herself.

This leads to a very common problem. When the beneficiary informs the INSS of his intention to return to work, if the INSS says that the activities to be carried out are incompatible with his situation, it automatically initiates a review process with the aim of ceasing to pay the benefit. On the other hand, it is also incompatible with retirement, i.e. only one of the two can be paid.

In short, the issue of permanent incapacity is quite complex and depends very much on each individual case. However, we are sure that we have been of help to you and that we have been able to resolve most of your doubts on the subject. If not, please do not hesitate to contact us.