Odice Lawyers

Permanent incapacity in Spain

ODICE LAWYERS

Definition of permanent disability

Permanent Incapacity is the situation in which a worker is unable to work due to a pathology or injury that limits him/her for one (or any) work activity.

In relation to the Permanent Disability Pensionthe Social Security states that it is:

"A benefit that is recognised when, after having undergone the prescribed treatment and having been medically discharged, the worker presents serious anatomical or functional reductions, foreseeably definitive, that diminish or annul their capacity to work".

Degrees of Permanent Disability in Spain

There are five degrees of permanent disability, which vary according to the limitations a person has to work:

  • Partial Permanent Disability

This is the lowest degree of invalidity and causes the worker a reduction of not less than 33% in his normal performance in his usual occupation, without preventing him from carrying out the basic tasks of the same.

  • Partial permanent disability does not entitle you to any monthly pension from the INSS or the mutual insurance company, as the case may be.
  • Total Permanent Disability

This is recognised for a worker who, because of illness or disease, is unable to carry out his or her usual occupation, but may engage in another occupation.

  • Total Permanent Disability entitles the beneficiary to a monthly pension of 55% of the regulatory base.
  • Qualified Permanent Total Disability

With a Total Incapacity of 55% of the regulatory base, on reaching the age of 55 this percentage can be increased by 20% if the pensioner is not carrying out any work activity. The benefit would therefore become 75% of the regulatory base.

  • Absolute Permanent Incapacity

It is recognised for those persons who have an illness or injury that renders them unfit for any profession or trade.

  • Absolute permanent incapacity entitles the beneficiary to a monthly pension of 100% of the regulatory base.
  • Major Disability

This is the maximum degree of incapacity for work, since the illness or injury disables the worker for any profession or trade and, in addition, requires the assistance of another person for the most essential acts of life.

  • Severe Disability entitles you to a monthly pension. 100% of the regulatory basein addition to a financial supplement.

What are the requirements for applying for a permanent disability pension?

  • Not having reached retirement age. 
  • Be registered with the Social Security or in a situation assimilated to registration.
  • A minimum period of prior contribution - unless the incapacity is the result of an accident (whether or not work-related) or occupational disease.

In addition to these requirements, each degree of incapacity has specific requirements.

Can a worker with a total permanent disability return to the company?

Yes, it is possible. As established by law, a worker with a permanent disability (total or absolute disability or severe disability) may rejoin the company where he/she was employed in one of the following two situations:

  • When the declaration reflects the foreseeable improvement within two years.* * When the declaration reflects the foreseeable improvement within two years.

In accordance with the Workers' Statute: 

If the situation of the worker declared to be permanently totally, absolutely or severely disabled may be subject to review due to improvement, in the following way to enable them to return to work, the suspension of the employment relationship, with reservation of the job, shall continue for 2 years from the date of the decision declaring the permanent incapacity.

*Such a suspension is only possible if, in the initial decision recognising incapacity, there is a time limit of 2 years or less for requesting a review due to foreseeable improvement.

  • If you plan to be redeployed to another post suitable to your capacity

Diseases that may entitle to a permanent disability pension in 2022

  1. Alzheimer's
  2. ArteriosclerosisThe medical court shall consider the functional limitation it causes.
  3. Rheumatoid arthritisThe medical court shall consider the functional limitation it causes.
  4. ArthrosisCurrent mobility should be assessed and evidence of improvement following treatment and medication should be provided.
  5. Cancer after assessing the after-effects of the oncological process on the person.
  6. Lung cancer.
  7. Ulcerative Colitis and treatments do not help to improve.
  8. Dementia in the degree of absolute permanent disability is the most common.
  9. Pulmonary emphysema with a marker equal to or lower than 60%.
  10. EpilepsyIn addition to diagnosis and treatment, the symptoms, the seizures caused by epilepsy and their sequelae will be taken into account.
  11. Multiple Sclerosisfrom level 4 (or in some cases 4.5 or 5, and up to 6.5) in degree of absolute permanent incapacity.
  12. Atrial fibrillation chronicle.
  13. Glaucoma if the binocular vision acuity test gives a result of less than 0.2, the pension shall be to the degree of absolute permanent disability.
  14. Cervical herniaThe degree of permanent total incapacity may be absolute permanent incapacity when there is evidence of disabling vertigo that is refractory to treatment as a result of the disease.
  15. Pulmonary Hypertension.
  16. Hearing loss if you are severely disabled.
  17. Mitral Insufficiency if the cardiologist diagnoses it as chronic.
  18. Chronic renal failureThe person shall be granted after assessment of the stage of progression of the disease and the degree to which it renders the person unable to carry out his or her work.
  19. Low back painThe degree of impairment of functional capacities shall be assessed.
  20. Systemic Erythematosus when organ involvement is severe.
  21. Myasthenia GravisThe degree of involvement of the disease, the impact of asthenia and other clinical manifestations shall be assessed.
  22. Migraine if the limitation they cause prevents the proper performance of a specific work activity.
  23. Parkinson if the disease renders the person unable to carry out his or her profession or other occupations.
  24. Hand Pathologieswill depend on the assessment of the Medical Board.
  25. Loss of vision if the visual acuity value is 0,1 or more
  26. Arnold Chiari Syndrome.
  27. Kidney transplant when a kidney stops working and a transplant is urgently needed.

How to apply for permanent disability?

In order to obtain permanent disability, the administrative procedure begins with the application for permanent disability addressed to the INSS (National Social Security Institute). If the INSS decision is not favourable to the applicant, a judicial phase is initiated in which In this case, it will be necessary to go to court and it is essential to have the advice and defence of an expert lawyer in the matter.

From Ódice Abogados, lawyers specialising in incapacity for work in MalagaWe are at your disposal to analyse your degree of incapacity and to process this process in a comprehensive manner in order to achieve the success of your request.

Share

Other Articles
Contact

Do you need legal advice and representation? At Ódice Abogados, a law firm in Malaga, we offer different means of communication so that you can contact us.