Social Security

Powers of bodies in relation to monitoring TD

The responsibility for monitoring the temporary disability (TD) situation from when it starts to the end of the 365th day, falls on the following bodies:

• Public Health Service (SPS), for issuing sick leave, confirmation of sick leave and medical discharge certificates.

• The National Institute of the Social Security (INSS), for issuing medical discharge certificates for all legal purposes and discharge proposals, as well as opening permanent disability (PD) files.

• Social Marine Institute (ISM), for issuing sick leave and medical discharge certificates (health care not transferred), medical discharge certificates for all legal purposes and discharge proposals (health care transferred), as well as opening PD files for workers included within the scope of application of the Special Scheme for Sea Workers.

• Mutual Societies for Work-Related Injuries (WRI) and Occupational Diseases (OD), for issuing sick leave, confirmation of sick leave and medical discharge certificates for WRI and OD and medical discharge proposals due to common contingencies.

• Collaborating companies, for issuing sick leave, confirmation of sick leave and medical discharge certificates for workers employed by them, as long as they have assumed responsibility for the management of health care and TD arising from work-related injuries and occupational diseases.
  

When the 365-day period has expired, the INSS or ISM will be the only bodies with authority, in their respective spheres, to:

• Grant an express extension.
• Decide to open a PD file.
• Issue a medical discharge certificate. 
• Issue a new sick leave certificate if, within a 180-day period after the medical discharge, an identical or similar disease occurs.

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Sick Leave Report

The declaration of sick leave, arising from common or occupational contingencies, is made on the corresponding sick leave certificate for TD issued immediately after the medical examination of the worker by:

• the SPS doctor, in the event of common contingencies and occupational contingencies which are covered by the Managing Body (INSS or ISM). This medical certificate:
  
  
• Initiates the actions leading to the declaration or rejection of the right to the benefit.
  
• Is completed in quadruplicate:
  
• The original is sent to the Health Services Inspectorate of the Social Security or the equivalent body in the respective SPS, and the copy to be sent by this body, within 5 days, to the Managing Body or to the Mutual Society for WRI and OD of the Social Security, must contain the diagnosis, the description of the limitation to the worker's functional capacity and the probable duration of the pathological process.
  
  If the doctor who issues the certificate is unable to determine the collaborating or Managing Body, they will provide the worker with the copy corresponding to these bodies in a sealed envelope, so that the worker can deliver it directly to said bodies within a period of 5 days, by the most appropriate means, or submit it to the company itself together with the copy specified in the following section.
• The other two copies are sent by the doctor to the worker, who keeps one copy and delivers the other copy to the company within 3 days of the date of issue.
• In turn, the company will send the copy, once completed, signed and sealed, to the Managing Body or Mutual Society, as applicable, within 5 days from the date of receipt, except when said company has assumed payment of the benefit, which has arisen from common contingencies, under a voluntary participation scheme.
  
• The medical services of the Collaborating Body (Mutual Society or collaborating company), when the cause of the sick leave is due to a WRI or OD and the worker provides services to a company that has arranged protection against such contingencies with a Mutual Society, or for self-employed workers who, likewise, have arranged TD financial benefit coverage with a Mutual Society for occupational contingencies. In these cases, it will not be necessary to provide the copies of the sick leave certificate to the Health Inspectorate of the corresponding SPS or the Managing Body.

• The INSS or the ISM, using its own doctors, when the sick leave occurs within 180 days of the medical discharge certificate issued by the Managing Body for the same or a similar ailment.

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Sick Leave Confirmation Medical Reports

Sick leave confirmation medical reports, arising from common or occupational eventualities, are issued by:

• the SPS doctor, in the event of common contingencies and occupational contingencies which are covered by the Managing Body (INSS or ISM). These reports are issued:

• On the 4th day from the beginning of the disability situation and every 7 days from the first confirmation report while this situation is in effect, when the disability is due to common eventualities.

• Seven calendar days following the beginning of the disability and every 7 days thereafter from the first confirmation report, when the disability is due to an employment injury or occupational illness.

• In quadruplicate:

• The original, addressed to the Health Services Inspectorate of the Social Security or the equivalent body in the respective SPS, and the copy to be sent by this body, within a period of 5 days, to the Managing Body of the Mutual Society for WRI and OD, must contain the diagnosis, the description of the limitation to the worker's functional capacity that is causing the continuation of the TD situation and the probable duration of the pathological process.
• The other two copies will be sent by the doctor to the worker, who will keep one copy and deliver the other copy to the company within 3 days of the date of issuance. In turn, the company sends the copy, once completed, signed and sealed, to the management entity within 5 days of date of receipt, except when the employer has assumed payment of the benefit under a voluntary collaboration scheme.
• If the contract is terminated during the period of sick leave, the worker must submit the sick leave confirmation certificates to the Managing Body or the Mutual Society, within the time period established for the company.
  
  
• The third confirmation certificate, as well as the successive four-weekly certificates, must be accompanied by a supplementary medical report issued by the doctor who issues the confirmation certificates. This report should list the ailment, the prescribed treatment, the development of the ailment and its effect on the worker's functional capacity, as well as the probable duration of the process.

• When the SPS issues the final sick leave confirmation certificate before the elapsing of the 365-day period, it shall inform the interested party in the medical examination that, as of said time, the competent Managing Body shall be responsible for monitoring their condition, with said Managing Body being informed of this circumstance by means of a computer procedure.

• Once the time period indicated in the foregoing paragraph has elapsed, the SPS shall issue no further confirmation certificates for the sick leave. In these cases, the Managing Body shall provide the appropriate notices to the interested party, the company, the SPS and, if applicable, the collaborating bodies and the Public State Employment Service.
  
  
• The medical services of the Collaborating Body (Mutual Society or collaborating company), when the cause of the sick leave is due to a WRI or OD and the worker provides services to a company that has arranged protection against such contingencies with a Mutual Society, or for self-employed workers who, likewise, have arranged TD financial benefit coverage with a Mutual Society for occupational contingencies. In these cases, it will not be necessary to provide the copies of the sick leave certificate to the Health Inspectorate of the corresponding SPS or the Managing Body.

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Medical discharge certificates during the first 365 days

Medical discharge certificate:

During the first 365 days of the TD situation in the processes arising from common or occupational contingencies, the medical discharge certificate will be issued by:

• the SPS doctor, in the event of common contingencies and occupational contingencies which are covered by the Managing Body (INSS or ISM). This report is preceded by a medical examination of the worker and is issued in quadruplicate:

• The original, addressed to the Health Services Inspectorate of the Social Security or the equivalent body in the respective SPS, and the copy to be sent by this body, within a period of 5 days, to the Managing Body of the Mutual Society for WRI and OD of the Social Security, must contain the result and the reason for the medical discharge.

• The other two copies are given by the doctor to the worker, who keeps one copy and delivers the other copy to the company within 24 hours.

• In turn, the company completes and sends the copy to the management entity or the Mutual, as appropriate, within 5 days of the date of receipt.

• If the contract is terminated during the period of leave, the worker must present the medical release report to the management entity or the Mutual, within the timeframe established for the company.

• The medical services of the Collaborating Body (Mutual Society or collaborating company), when the cause of the sick leave is due to a WRI or OD and affects workers of companies that have arranged protection against such contingencies with a Mutual Society, or for self-employed workers who, likewise, have arranged TD financial benefit coverage with a Mutual Society for occupational contingencies. In these cases it is not necessary to send the copies of the certificate to the Health Services Inspectorate of the Social Security, the body of the corresponding SPS, or the Managing Body.

With regard to medical discharge certificates issued by Mutual Societies and collaborating companies in TD processes arising from occupational contingencies, the interested party may start the special review procedure of this medical discharge at the Managing Body, before the 365 days has elapsed.  

Without prejudice to the powers of the SPS, the doctors attached to the INSS or ISM can issue a:

Medical discharge certificate:

• Until the maximum duration of 365 days for TD processes of the Social Security System is complete, the INSS and, where appropriate, the ISM, through the medical inspectors attached to said bodies, will have the same powers as the Social Security Health Services Inspectorate or similar organisation of the respective SPS, to issue a medical discharge certificate for all legal purposes.

• When the medical discharge has been issued by the INSS or the ISM, these bodies will be the only organisations with authority, using their own doctors, to issue a new sick leave in a TD situation, as long as it occurs within 180 days of the aforementioned medical discharge for the same or a similar ailment.

• The Secretariat of State for the Social Security, at the proposal of the INSS, and through a decision published in the BOE,   will set the date as of which the functions assigned in the previous paragraph will be assumed. (* From 19/09/2010, the date of the entry into force of Law Law 35/2010,  until the publication of the decision issued by the Secretariat of State for the Social Security, the Managing Body may only issue discharge proposals). 

Medical discharge proposal:

• The Managing Body or Mutual Society (in this case, in relation to situations of TD arising from common contingencies) may draw up, through the medical services they are attached to, "reasoned proposals" for medical discharge when, upon seeing the medical discharge certificates, confirmation of sick leave certificates, the supplementary reports and the medical examinations carried out, it is deemed that the worker may be able to work.

• The medical discharge proposals are sent, through the Social Security Health Services Inspectorate Units or equivalent body of the corresponding SPS, to the doctors who issued the sick leave and sick leave confirmation certificates, who must state their opinion within 10 days of the date on which the proposal was made available to the Inspectorate Unit:
  
  
  • Either confirming the release proposal and issuing the medical release report.
  • Or confirming the sick leave, indicating the necessary medical controls and informing the management entity or the Mutual.
  • If no decision is expressly made within the specified time period or the Health Services Inspectorate or the corresponding body of the SPS disagrees with the decision made, these parties can agree the medical discharge, within 15 days of receiving the discharge proposal, notifying the Managing Body or Mutual Society that issued the proposal of the action taken.

• When a medical discharge proposal prepared by a Mutual Society is not dealt with by the SPS in the regulation time period, the Mutual Society may choose to:
  
  
  • Retract the proposal to the SPS and, if they do not receive a reply, propose the medical discharge to the INSS medical services.
  • Propose the medical discharge to the INSS medical services.
    
• In the event of medical discharge issued by the INSS doctor, the medical discharge certificate will be dependent on the non-objection of the SPS and effective date of the medical discharge will be the 5th working day after the issuance of the certificate.

• If, within 5 working days the worker has not received notification from the INSS of the objection of the SPS, they must provide the company with the copy intended for them within 24 hours of the effective date of the medical discharge. 
  

When the 365-day period of TD has expired, the INSS (or ISM) will be the only body with authority to:

• Grant an express extension up to a maximum of 180 additional days.

• Decide to open a permanent disability file.

• Issue a medical discharge certificate. If the interested party does not agree with the medical discharge issued by the Managing Body they can put forward their objection in accordance with the legally established terms.

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Other Medical Control Reports

From the start of the TD situation, independently from all the medical certificates and reports described in the previous sections, the following disability monitoring reports must be prepared quarterly:

• The Social Security Health Services Inspectorate or the equivalent body of the respective SPS will issue a medical monitoring report which must include all of the facts that, according to medical opinion, justify the need to continue with the TD process. This report must be sent to the management entity or Mutual within 10 days of being issued, as appropriate.

• In cases in which companies have employment injury and occupational illnesses risk coverage with a Mutual, the medical control report will be prepared directly by their own medical services.

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Procedure for objecting to the medical discharge certificate issued by the Managing Body after 365 days

• With regard to the decision of the INSS (or the ISM), stating that the TD has come to an end due to medical discharge, the interested party can put forward their objection within a maximum period of 4 calendar days after receiving the decision, by filling in theform approved for this purpose by the Managing Body.
  
  
• The statement of objection must be submitted to the Medical Inspectorate of the SPS, the Managing Body or any of the bodies indicated in Article 38.4 of Law 30/1992, of 26 November, on the Legal Framework for Public Administration and Common Administrative Procedure.
  
  
• The interested party must inform the company on the day that they submit the objection or on the next working day.
  
  
• If the SPS disagrees with the Managing Body's decision, they can propose, within a maximum period of 7 calendar days, that the decision be reconsidered, stating the reasons and the basis for their disagreement.
  
  The Managing Body must make an express decision within the next 7 calendar days and notify the interested party. This decision must also be communicated to the Medical Inspectorate as follows:
  
  
  • If the medical discharge is reconsidered in favour of the proposal, the interested party will be granted an extension of TD with full effects.
  • If, conversely, it confirms its decision, providing supplementary proof upon which the decision is based, the TD situation will only be extended until the date of the final decision.
    
    
• If the SPS approves the Managing Body's decision or does not make a decision within a period of 11 calendar days following the date of the decision, the aforementioned medical discharge shall be fully effective. During the time that has passed between the date of medical discharge and the date it becomes fully effective, the TD situation shall be considered as extended.
  
  
• The INSS (or the ISM) and the SPS must reciprocally communicate, in the shortest possible time, the start of the objection procedure, as well as all the decisions that they make when implementing the procedure.
  
  
• The Managing Body must in turn notify the company, in the shortest possible time, of all the decisions that may affect the duration of the TD situation for the interested party.
  
  
• The communication between the EEGG, SPS and those directed to the company shall preferably be done using electronic or telematic media.

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Review procedure for the medical discharge certificates issued by the Mutual Society for WRI and OD or the collaborating company

With regard to medical discharge certificates issued in TD processes arising from occupational contingencies, the interested party may start the special review procedure of this medical discharge at the competent Managing Body before the 365-day TD period has elapsed, in accordance with the provisions in the following paragraphs:

• The processing of the procedure must be considered as a priority by the Managing Body, so that the decision can be issued in the shortest time possible.

• The interested party can request a review of the medical discharge certificate issued by the collaborating body within 4 calendar days after being notified, by submitting the application for this purpose to the Managing Body, stating the reasons for their objection to the medical discharge. This must be submitted along with their prior medical history related to the TD process or, where appropriate, a copy of the application for this medical history from the collaborating body.

The interested party must inform the company on the day that they submit the objection or on the next working day.

• Simply starting the procedure will suspend the effects of the issued medical discharge certificate, and the TD situation arising from occupational contingencies during the procedure shall be considered to be extended. Where appropriate, the payment of the benefit through the delegated payment method will be maintained, without prejudice to the fact that the TD financial benefits may later be considered as unduly paid, in accordance with the terms set out in the following paragraphs.

• The INSS or the ISM, as applicable, will inform the competent Mutual Society for WRI and OD that the special review procedure has started so that, within a non-extendable period of 2 working days, they provide the medical history related to the TD process and the report on the reasons for the issuance of the medical discharge certificate. If the aforementioned documentation is not submitted, the appropriate decision will be issued in consideration of the information provided by the interested party.

The Mutual Society can state their disagreement with the issued medical discharge certificate, which will cause the procedure initiated by the interested party to be filed immediately with no further processing.

• Likewise, the competent Managing Body shall inform the company of the start of the procedure within two working days after the application is submitted by the interested party. When the interested party has submitted the sick leave certificate issued by the SPS to the company, the company must immediately inform the INSS or the ISM of this circumstance so that they can coordinate the subsequent actions.

In turn, when the interested party requests sick leave due to a common contingency and, from the medical examination, a previous TD process due to an occupational contingency in which a medical discharge certificate was issued is detected, the SPS must inform the interested party about the possibility of starting this special review procedure within 4 calendar days after the date of notification of the medical discharge certificate issued by the collaborating body and, in addition, the Managing Body must be immediately informed of the fact that there are two different TD processes underway which could be related.

In these cases, the TD benefit for common contingencies will start to be paid until the procedure decision date, without prejudice to the fact that when the medical discharge certificate issued by the Mutual Society for WRI and OD of the Social Security is null and void, the Mutual Society has to reimburse the Managing Body with the benefit paid to the interested party and pay back the interested party the resulting difference in their favour.

• The competent Provincial Director of the corresponding Managing Body will make the appropriate decision within a maximum of 15 working days counting from when the documentation was provided by the collaborating Body, following a compulsory report from the disability assessment team that must examine and evaluate the specific case.

• The decision made will determine the date and effects of the medical discharge certificate or the continuation of the sick leave specifying, where appropriate, the contingency that caused the TD process, as well as, their disagreement with other sick leave certificates that may have been issued during this special procedure by the SPS. As a result, the procedure will end with one of the following decisions:

• Confirmation of the medical discharge certificate issued by the Mutual Society for WRI and OD of the Social Security and the declaration that the TD process has come to an end on the date of the aforementioned medical discharge.

• Continuation of the TD situation arising from occupational contingencies because the interested party is deemed to still be suffering from problems that prevent them from working. As a result, the medical discharge certificate issued by the collaborating body will be null and void.

• Determination of the common or occupational contingency that caused the TD situation, when there is more than one process underway at the same time and, therefore, different sick leave certificates. Likewise, as a result of determining the originating contingency, the corresponding effects of the TD process will be set out.

• When the interested party has recovered their capacity to work during the procedure, the medical discharge certificate issued by the collaborating body may be declared null and void as a result of being deemed premature. In these cases, the decision will determine the new effective date of the medical discharge certificate and the termination date of the TD process.
• When the competent Managing Body confirms the medical discharge certificate issued by the collaborating body or it sets a new termination date for the TD situation, the TD financial benefits arising from occupational contingencies that were paid to the interested party after the date specified in the decision will be considered to have been unduly received.

• The communication between the EEGG, the collaborating body, the SPS and the company shall preferably be done using electronic, computer or telematic media, which enable the information to be sent as quickly as possible.

• If during this special procedure, the maximum 365-day period for the TD situation is completed, the competent Managing Body will make a decision in accordance with the provisions of 128.1a) of the LGSS.

• The payment of the benefit during this procedure will be incompatible with the income gained from work in the tax year.

• The decisions made by the Managing Body, in exercise of the powers set forth in this procedure, can be considered as being issued with the same effects as those attributed to the decision on a prior claim, in accordance with the provisions of art. 71 of the revised text of the Law on Employment Procedure, approved by RD 2/1995, of 7 April, which must be recorded in the issued decision.

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