The National Social Security Institute is the entity in charge of assessing the health and capabilities of workers who are on medical leave. In the event that your limitations prevent you from returning to your job permanently, the INSS grants the degree of permanent disability that best suits to the employee’s situation, as well as a pension to compensate for the economic loss due to the cessation of work activity.
Although to carry out this evaluation they need to consult the medical reports, which show all the difficulties that the illness and/or accident are causing in the disability worker, it is quite common for them to deny the requests. Specifically, and according to lawyer Marina Alaminos, “the INSS denies 80% of disabilities.” Nevertheless, This does not mean that your decision cannot be appealed..
This was the case of Pablo, a mechanic with years of experience in the sector and whose job was in charge of handling tools and heavy parts. In his profession, agility and strength in the hands is essential. Therefore, when he began to notice that these were failing or that they were simply blocked, he began to worry.
Pablo was diagnosed with osteoarthritis and chronic neck pain
When this situation began to cause pain during his work day and limit his tasks, he decided to go to the doctor. The diagnosis was clear: had developed osteoarthritis in both handsas well as chronic neck pain that made it difficult for him to make movements with his neck. Even though the symptoms of both pathologies were becoming more common, he decided to continue working.
The increase in pain and stiffness meant that he could not continue carrying out his work normally, so he decided to take medical leave. The objective of this period was to focus on rehabilitation treatment, always with the intention of returning to his job when he could. However, despite the constancy, his symptoms did not subside.
The INSS denied him permanent disability and decided to appeal
When a temporary medical leave exceeds 365 days, the INSS is responsible for assessing the worker’s medical condition and deciding whether to extend the leave, issue a discharge or initiate a permanent disability file. And Pablo considered that, due to the limitations in the mobility of his hands, the entity would decide to grant him a degree of permanent disability. The surprise came when They chose to deny the request.
It was then that the mechanic decided to go to a lawyer specialized in disability issues, Marina Alaminos, who evaluated his case. As he explained in a post on his Instagram account, “it is not the diagnosis that determines whether or not there is a permanent disability, but How these injuries affect the specific functions of your profession“. And, in Pablo’s case, the pain and stiffness prevented him from continuing to work as a mechanic.
The judge granted him total permanent disability
That is why they decided to file a claim with the INSS, indicating the direct consequences that the symptoms of their pathologies were having on the mobility of their hands and how this would prevent them from performing their job. Despite the argument, the entity again denied the request, so They had to go before the Social Court.
There they defended that “when there is loss of strength, stiffness, constant pain or difficulty performing repetitive movements, continuing to perform these functions may become impossiblealthough the person retains autonomy for many activities of daily life.” An argument that led the judge to admit the total permanent disability for his profession as a mechanic and grant him a pension of 55% of the regulatory base until he found another job adapted to his abilities.
According to lawyer Marina Alaminos, in its decision, the INSS limited itself to assessing its client’s medical diagnosis, without taking into account the real demands of his normal work activity. That is why it remembers the importance of claiming this type of sentences when they do not fit the reality of the worker and recommends that, with medical reports demonstrating your limitationsthey can present the case to justice.