Your permanent disability was refused: how the claim works

The case, in five lines

What is brought

Social Security benefits claim against the decision refusing permanent disability or granting a lower grade than the one due, after the compulsory prior administrative claim.

Before which court

The Social Section of the Tribunal de Instancia (the first-instance court), against the national social security institute and the social security treasury, and against the mutual insurer and the employer where the contingency is occupational.

Deadline

Thirty days for the prior claim from notification of the decision or from the silence, and thirty more for the court claim from notification of its refusal or from its being taken as refused by silence, which happens after forty-five days.

Who can bring it

The person for whom the benefit was sought. They must meet the minimum contribution period, which is not required where the disability arises from an accident, whether or not work related, or from an occupational disease.

Financial risk

The real cost of the matter is the medical expert evidence, paid up front and not always recovered. In social security matters the beneficiary is not ordered to pay costs at first instance, but weak expert evidence loses a case that was winnable.

What is argued is not your illness: it is your usual occupation

Article 194.2 LGSS says it plainly: in determining the grade, account is taken of how the reduction in working capacity affects the occupation the person carried out, or the professional group it belonged to, before the triggering event. The very same injury yields different grades depending on what the person who suffers it does for a living.

That is why the case is won or lost on ground many reports overlook: the description of your real tasks. Saying metal structure fitter is not enough. You have to evidence how many kilos you lift, at what height you work, how many hours you spend with your arms above shoulder height and what share of the working day demands those movements.

That material comes from the job definition in the collective agreement, the risk assessment for the post, the company's task sheet and the occupational health checks. When the expert report crosses your functional limitations with that description task by task, the matter stops being an abstract medical argument and becomes a concrete comparison.

The chance of improvement is not a ground for refusal

Article 193.1 LGSS defines contributory permanent disability as the situation of a person who, after undergoing the prescribed treatment, presents serious anatomical or functional reductions, capable of objective determination and foreseeably definitive, that reduce or cancel their working capacity. Every word of that definition is a battleground in the decision you have been sent, and the provision immediately adds the qualification that decides most cases.

The possibility of recovering working capacity shall not prevent that classification where such possibility is medically judged uncertain or long term. That is the statutory answer to the commonest refusal: the one saying the injuries are not definitive because a technique remains untried or a course of rehabilitation unfinished. Uncertain or long term are the words the expert evidence has to prove.

The same article also allows the requirement of having first undergone the prescribed treatment to be dispensed with where, given the features of the condition, the stage of the disease, its foreseeable course and the seriousness of the reductions, these are sufficiently objectified and foreseeably definitive. It is an open route for serious conditions with a known course.

Four grades, and between them there is far more than a name

Article 194.1 LGSS classifies permanent disability as partial, total, absolute and severe disability, according to the percentage of reduction in working capacity assessed under the list of illnesses to be approved by regulation. Paragraph 3 refers to that same regulation the assessment of those illnesses, the determination of each grade and the rules on what each of them is compatible with.

Article 196 LGSS turns each grade into money. Partial gives a lump sum. Total gives a lifetime pension, which may exceptionally be replaced by a lump sum if the beneficiary is under sixty, and which is increased by the percentage set in regulation where age, lack of training and the circumstances of the place of residence make it presumable that work other than the usual occupation will be hard to find.

Absolute gives a lifetime pension. And severe disability adds to that pension a supplement to pay the person who cares for the beneficiary, equal to forty-five per cent of the minimum contribution base in force at the triggering event plus thirty per cent of their last contribution base, and never less than forty-five per cent of the pension received without the supplement.

The prior claim closes the door if it is missed

Article 71.1 LRJS makes the prior claim a necessary requirement for bringing a social security benefits claim. It is not optional nor a gesture of administrative courtesy: without it there is no claim to be made. Paragraph 2 sets its period at thirty days from notification of the decision on the initial application, or from the moment the administrative silence must be taken as produced.

Paragraph 5 requires the body to answer expressly within forty-five days, and provides that otherwise the claim is taken as refused by administrative silence. Paragraph 6 then gives thirty days to bring the court claim, counted from notification of the refusal or from the day it is taken as refused by silence.

One detail brings claims down entirely. Paragraph 7 requires the receipt for the prior claim, or a copy duly stamped with the date, to be attached to the court claim without exception. Bringing the prior claim and not keeping the proof leaves the requirement unevidenced, however timely the claim itself may have been.

The contributions required, and the accident that wipes them out

Article 195.1 LGSS requires, besides the disability itself, the minimum contribution period to have been covered, unless it arises from an accident, whether or not work related, or from an occupational disease, in which case no prior contribution period is required. That exception decides many cases involving young workers or short contribution records.

For partial permanent disability, paragraph 2 requires one thousand eight hundred days within the ten years immediately preceding the date the temporary incapacity it derives from ended. For pensions, paragraph 3 requires one third of the time elapsed since the age of sixteen for those under thirty-one, and one quarter of the time elapsed since the age of twenty, with a minimum of five years, from that age on.

In that second case, at least one fifth of the required period must fall within the ten years immediately preceding the triggering event. And paragraph 4 allows absolute or severe disability from common contingencies to be claimed without being registered or in an assimilated situation, requiring then fifteen years of contributions distributed under that same rule.

Without your own expert, the official report stands alone

The disability assessment team's report is a technical document that reaches the hearing with the strength of something nobody contradicts. Producing only your family doctor's reports or hospital records is rarely enough: they describe the illness but do not translate your limitations into the language of the demands of a specific job.

The medical expert report commissioned for the case does exactly that. It describes the objectified functional limitations, assesses whether they are foreseeably definitive or whether recovery is uncertain or long term in the terms of article 193.1 LGSS, and sets them against the evidenced tasks of your usual occupation under article 194.2. That crossing is the core of the case.

It is worth knowing from the outset that this report is paid up front and its cost is not always recovered, because in benefit matters the beneficiary is not ordered to pay costs at first instance but does not recover their own either. That conversation is had before anything is commissioned, with an honest assessment of the case's real prospects.

How we run the case, step by step

1. 1

   Reading the decision and fixing both deadlines

   We identify the notification date, the grade proposed and the contingency declared, and note the thirty days for the prior claim and the thirty that follow for the court claim. Both deadlines are written down on day one.

2. 2

   Documenting your usual occupation task by task

   We gather the job definition in the collective agreement, the risk assessment, the duties sheet and the occupational health checks. Without that description there is no way to apply the test in article 194.2 LGSS.

3. 3

   Bringing the prior claim and keeping the receipt

   We bring the prior claim within the thirty days, with whatever medical reports already exist, and keep the stamped receipt, which article 71.7 LRJS requires to be attached without exception to the later court claim.

4. 4

   Commissioning the medical expert report

   The expert examines your clinical history and the evidenced tasks and issues a report assessing the functional limitations and whether they are foreseeably definitive. It is commissioned early, because the court claim has a thirty day deadline.

5. 5

   Suing within the following thirty days

   We bring the claim before the Social Section of the Tribunal de Instancia, with the receipt for the prior claim, the expert report and the job documentation, seeking the grade that is due and, in the alternative, the lower one.

6. 6

   The hearing and the expert's examination

   At the hearing the expert confirms the report and answers questions. That is where the matter is decided: whoever best explains why those limitations prevent those specific tasks, rather than arguing about diagnoses, takes the judgment.

The law that applies

• Art. 193 LGSS. It defines permanent disability as serious anatomical or functional reductions, objectively determinable and foreseeably definitive, that reduce or cancel working capacity after the prescribed treatment, and specifies that the possibility of recovery does not prevent that classification where it is medically judged uncertain or long term. It allows the prior treatment requirement to be dispensed with where the seriousness and course of the condition are sufficiently objectified. BOE-A-2015-11724
• Art. 194 LGSS. It classifies permanent disability as partial, total, absolute and severe according to the percentage of reduction in working capacity, and requires the grade to be determined by looking at how that reduction affects the occupation the person carried out, or the professional group it belonged to, before the triggering event. BOE-A-2015-11724
• Art. 195 LGSS. It sets the minimum contribution periods: one thousand eight hundred days within the preceding ten years for partial disability, and for pensions one third or one quarter of the time elapsed depending on age, with a minimum of five years. It requires no prior period at all where the disability arises from an accident, whether or not work related, or from an occupational disease. BOE-A-2015-11724
• Art. 196 LGSS. It sets the cash benefits for each grade: a lump sum for partial, a lifetime pension for total, which may be replaced by a lump sum if the beneficiary is under sixty and increased by a percentage where other work is hard to find, a lifetime pension for absolute, and a pension with a supplement for the carer in severe disability. BOE-A-2015-11724
• Art. 71 LRJS. It imposes the prior administrative claim as a necessary requirement for suing over benefits, within thirty days of notification or of the silence, requires the body to answer within forty-five days failing which the claim is deemed refused, gives thirty more days to sue and requires the stamped receipt for the claim to be attached to it. BOE-A-2011-15936

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions