Permanent incapacity or permanent disability

Permanent incapacity or disability is, from an employment perspective, the situation in which a worker, whether employed or self-employed, is in some way unable to carry out his or her activities normally due to a pathology, a common illness or an accident, whether directly related to them or not.

These concepts should not be confused with those of disability and handicap, as they refer to a social situation, not an occupational one, which is the subject that concerns us. However, it is undeniable that there is a direct relationship between them, which will be reflected a little further on. In any case, when the term permanent is added, reference is made to a non-remediable problem that will prevent, in the present and in the future, the development of a certain activity, which may or may not be the worker's usual activity. As lawyers specialising in labour law, we will try to make these concepts clearer for you. 

Contributory and non-contributory permanent invalidity

Another important aspect of the problem we are dealing with here is whether it is contributory or non-contributory. It is true that, in both cases, it is the object of social security protection, but in different modalities.

The contributory modality is that situation in which the worker, after having suffered from a specific problem, having undergone the relevant treatment and having been discharged from the medical service, suffers severe functional and/or anatomical reductions that prevent him from carrying out his work activities, at least in whole or in part. In these cases, it is attributed as definitive sequelae.

On the other hand, it also receives the permanent qualification, regardless of whether it has been qualified as partial, absolute, total or severe, once the maximum period of temporary incapacity has expired, which is usually one year, extendable for a further 6 months, provided that it is considered that during this time it will be possible to proceed to medical discharge.

Determination of the degree

As we have already mentioned, this problem has different degrees, which have to be determined by a specialised medical court on the basis of the certificates provided by the interested party and all the reports it deems necessary. In this sense, it can determine four types:

Partial

Partial is understood to be that which prevents the worker from carrying out his/her usual activity with at least 33% of his/her normal performance being affected, without preventing him/her from carrying out the fundamental activities inherent to it. In general, these persons are entitled to receive a lump sum equivalent to 24 monthly payments of the regulatory base at which they were contributing during the last 18 months, although there may be peculiarities in the case of those under 21 and 31 years of age and those who have not worked continuously for the last 10 years.

In addition, there are a number of social benefits derived from their disability. For example, people certified with this degree of disability will be able to access quotas of competitions reserved for candidates with these problems.

Total

Total is understood to be that which prevents the worker from carrying out the fundamental and inherent tasks of their usual profession but which does not prevent them from engaging in a different one. In this sense, according to Supreme Court rulings, this must be the one performed at the time of the accident, not the one recognised by the company.

These workers are entitled to a benefit to compensate for the problem of not being able to carry out their usual profession. They may also be entitled to receive an additional 20% of the regulatory base if they are not employed or self-employed in another job in the same category or occupational group.

Absolute

Absolute disability is understood to be that incapacity whose degree disables the worker from carrying out any trade or profession that requires a minimum degree of effectiveness and efficiency. Evidently, the fundamental difference with respect to total disability is that the subject is also unable to carry out an activity other than that which he/she was carrying out at the time of suffering the causal event. This may be a work-related or non-work-related accident or a common or occupational illness.

Usually, workers who are assessed with this type of disability receive 100% of their regulatory base, although there are exceptions. Furthermore, as soon as they reach the age of 65 or, failing that, their retirement age, the benefit is considered a retirement pension without any other significant event occurring.

Severe disability

This is the highest degree of all. In addition to suffering a specific problem that incapacitates the person from carrying out their usual professional activity or any other, they also require the assistance of another person to carry out the fundamental actions in the life of any human being, such as eating, showering, dressing, etc. In this sense, if the person in question is able to do them, even if it is more painful than usual, it is not recognised.

The way in which the corresponding pension is calculated is similar to that for the absolute degree. This means that the person concerned is entitled to 100% of his or her pensionable earnings. In addition, however, the dependants will receive an additional 50% to compensate for their care.

It should be noted in this respect that the beneficiary of the benefit, as well as his or her legal representatives, may request that, in exchange for this 50% increase, the person concerned be placed in a public social security care institution financed from the general state budget and in which he or she will be placed in a residential facility.

Who pays the pension?

The truth is that it depends on the case. In this regard, if the problem has arisen as a result of a non-occupational accident or common illness, the National Social Security Institute (INSS) will be responsible for paying the amount. In the event of an occupational illness or accident at work, it will be the INSS or, failing that, the Mutual Society to which the worker is affiliated. Finally, if either of these two circumstances occur but the worker is not registered with the Social Security due to non-compliance with the employer's obligations, it will be the employer who must pay the amount.

Does the receipt of a pension affect personal income tax?

The answer is that, in the case of partial, total and temporary pensions, yes. Therefore, when filing your income tax return, you must specify that you have received the pension. This is not the case for cases certified as absolute and severe disability.

All that remains to be said is that the pension can be revoked if the person experiences sufficient improvement or total cure of the problem that led to the pension being paid. Also, in the event of death, the pension automatically ceases to be paid. This is a complex issue and it is important to always keep these concepts in mind. If you have any further questions, please do not hesitate to contact us.