You have been discharged but are not recovered: how to challenge it and within how many days

There is no single deadline. There are 3, and the one that applies depends on who signed the discharge. If it was issued by a mutua or a collaborating company in a process derived from a work accident or occupational disease, and you have not yet exhausted the 12 months of sick leave, you have the 10 working days following the notification to ask the INSS for a review of the discharge. This is established by article 4.2 of Real Decreto 1430/2009.

If the discharge was given by the INSS after exhausting the 365 days of temporary disability, the deadline drops to 4 calendar days to express your disagreement before the medical inspection of the public health service. This is article 170.3 of Ley General de la Seguridad Social (the Spanish General Social Security Act), in the wording in force since 17 May 2023. 4 calendar days means that Saturdays, Sundays and public holidays count equally.

In all other cases, meaning the discharge issued by your GP or by the medical inspection before 365 days, the route is the prior administrative claim, and the deadline is 11 days from the notification of the resolution. This is stated in article 71.2, second paragraph, of Ley 36/2011 (the Spanish Act regulating social jurisdiction).

The difference between a working day and a calendar day is the most frequent cause of a challenge arriving late. Working days exclude Saturdays, Sundays and public holidays. Calendar days do not exclude anything. And the deadline, once passed, cannot be recovered: the discharge becomes final in the administrative route.

This is the part that almost no one knows and the one that saves the most money and health. The general rule is harsh: article 5.1 of Real Decreto 625/2014 establishes that medical discharge extinguishes the temporary disability with effects from the day following its issuance and obliges you to return to your post that same day. But that rule has 2 exceptions, and they coincide exactly with the 2 challenges with the shortest deadlines.

First exception, discharge from the mutua. The mere initiation of the special review procedure suspends the effects of the discharge and extends the temporary disability throughout the processing, maintaining the payment of the benefit in the delegated payment modality. This is literal from article 4.3 of Real Decreto 1430/2009. You do not return to work and you continue to be paid.

Second exception, discharge from the INSS after 365 days. Article 170.3 of Ley General de la Seguridad Social says that during the period between the date of the medical discharge and the date on which it acquires full effects, the situation of temporary disability will be considered extended. Those full effects do not arrive until the medical inspection confirms the criteria of the INSS or until 11 calendar days pass without any pronouncement.

There is an obligation that cannot be skipped. You must notify your company that you have submitted the challenge, on the same day or the following working day. This is required by the third rule of article 3 and article 4.2 of Real Decreto 1430/2009. That notice is what turns your absence into an absence protected by an extended sick leave. We draft that communication and send it with proof of receipt on the same day we submit the document.

Beware of the opposite scenario. If the discharge was given by your GP in a process for common illness before 365 days, there is no automatic suspension. There the discharge produces effects, the return to work is mandatory and the prior claim does not paralyse it.

Before writing a single line, you must look at the paper and answer 2 questions: who signs it and how many days you had been on sick leave. From those 2 answers come the deadline, the document and the body that resolves. Choosing the wrong procedure is equivalent to not submitting anything.

Mutua or collaborating company, in a process for a work accident or occupational disease and before 12 months: special administrative review procedure before the provincial directorate of the INSS, article 4 of Real Decreto 1430/2009. The provincial director resolves, after a mandatory report from the incapacity assessment team, in a maximum of 15 working days from when the mutua provides the file.

INSS or Instituto Social de la Marina, once the 365 days are exhausted: manifestation of disagreement before the medical inspection of the public health service, article 170.3 of Ley General de la Seguridad Social and article 3 of Real Decreto 1430/2009. The inspection has 7 calendar days to propose reconsideration and the INSS another 7 to pronounce itself.

Public health service or medical inspection of the INSS before 365 days: prior claim within 11 days, which the entity must answer in 7 days according to article 71.5, second paragraph, of Ley 36/2011. If it does not answer, it is understood as dismissed and the judicial deadline opens.

A detail worth knowing. When the discharge has been issued by the INSS, only the INSS can give you a new sick leave for the same or similar pathology during the following 180 days. This is stated in sections 1 and 2 of article 170 of Ley General de la Seguridad Social. Returning to your GP's office is useless in that scenario, and that is why the 4 calendar day deadline is so critical.

The discharge cuts off the subsidy. Everything you would have received from that date is lost if the discharge is consolidated. That is why the first calculation to make is how much a day of sick leave is worth to you, and multiply it by the days your doctor estimates you still need.

The amount depends on the contingency. In common illness or non-occupational accident, nothing is paid for the first 3 days, 60% of the regulatory base is paid from the 4th to the 20th day and 75% from the 21st day onwards. In a work accident or occupational disease, 75% of the regulatory base is paid from the day following the sick leave, and the company pays the full salary for the day of the sick leave. Basis: article 173.1 of Ley General de la Seguridad Social and article 2 of Decreto 3158/1966, in the wording given by Real Decreto 53/1980.

The contingency not only changes the percentage. In a work accident or occupational disease, no previous contribution period is required, while in common illness 180 contributed days are needed within the previous 5 years. This is article 172 of Ley General de la Seguridad Social. For those who have been contributing for a short time, that difference decides whether there is a benefit or nothing at all.

And there is a 3rd effect. All economic benefits derived from a work accident or occupational disease are increased between 30% and 50% when the injury occurred due to a lack of safety measures. This is the surcharge of article 164 of Ley General de la Seguridad Social, which is paid directly by the offending company and cannot be insured.

The procedure before the INSS does not accrue any tasa (official fee). What does have a cost is preparing the document, the medical history and the written submissions (alegaciones) well within a deadline measured in days. The amount of our management appears in the procedure file.

Many sick leaves that are of occupational origin appear as common illness. This happens when the accident was not processed, when the ailment appeared slowly or when the mutua rejected the case and the worker ended up at their health centre. The consequence is that you receive less, a waiting period is required and the surcharge is lost.

The correction has its own procedure: the determination of the causing contingency, article 6 of Real Decreto 1430/2009. It can be initiated at the request of the worker from the date of issuance of the sick leave report, without waiting for the discharge. The INSS notifies the mutua and the public health service, which have 4 non-extendable working days to provide background information, and grants you 10 working days to provide documentation and make written submissions (alegaciones).

The resolution is issued by the provincial director of the INSS in a maximum of 15 working days from the provision of the documentation, after a mandatory report from the incapacity assessment team, and pronounces on the contingency, on the effects on the process and on who must pay.

It is advisable to raise both things at the same time when the case allows it. The challenge of the discharge discusses whether or not you are capable of working. The determination of contingency discusses where the ailment comes from. They are different questions that are processed separately, but they rely on the same medical history and the same evidence, and presenting them in a coordinated manner prevents one resolution from contradicting the other.

The administrative procedure can end in 4 ways according to article 4.7 of Real Decreto 1430/2009: confirming the discharge, maintaining the temporary disability, determining the contingency or leaving the discharge without effect due to being premature. If they confirm the discharge, the benefits received from the date set by the resolution are considered unduly received.

From there remains the judicial route. The deadline to sue is 20 days, not 30. This is set by article 71.6, second paragraph, of Ley 36/2011. When a prior claim is not required, those 20 days are counted from when the discharge acquires full effects or from the notification of the definitive discharge agreed by the managing entity.

Against the discharge issued by the INSS upon exhausting the 365 days, it is not necessary to exhaust the prior administrative route. This is expressly excluded by article 71.1 and article 140.1 of the same law.

The judicial process for challenging medical discharges is urgent and preferential. The hearing is scheduled within the 5 days following the admission of the lawsuit and the sentence is issued in 3 days. That sentence has no appeal and its effects are limited to the challenged discharge, according to article 140.3 of Ley 36/2011. If it estimates that the discharge was improper, it restores the benefit you had been receiving.

We need 3 things from you and none is difficult to gather: the report or resolution of discharge that you want to challenge, because the entire deadline depends on its date; the medical reports and tests that prove you are still unable to work; and your identity document. If you also request the change of contingency, add the work accident report when the company processed it, or your contract or a recent payslip when you allege an occupational disease, because what decides if an ailment appears as occupational is the position you hold.

If you do not keep the discharge report or the previous medical history, it is not an obstacle. Article 4.2 of Real Decreto 1430/2009 admits attaching a copy of the request for the history addressed to the collaborating entity. We request that history and submit the application with the copy of the request, so as not to consume the deadline waiting for papers.

We identify which procedure corresponds to your case, draft the document, submit it electronically to the INSS on your behalf, send the mandatory communication to your company on the same day and confirm in writing that the discharge has been suspended. Then we follow the file, respond to the INSS notification with the written submissions (alegaciones) and notify you of the resolution as soon as it is issued.

If the resolution confirms the discharge, we tell you with the calculation of the 20 day deadline already done and explain what options you have. We do not refer you anywhere: we continue.