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They must be included under the voluntary improvement of the protective actions arising from work-related injury and occupational disease contingencies and have previously or simultaneously opted for temporary disability benefit coverage.They must be up-to-date with contribution payments.
It is necessary to determine whether the disability happened unexpectedly as a result of an injury (work-related or not) or a disease (common or occupational):
If the disability results from an injury or occupational disease, the contribution period is not required, unless it is an absolute permanent disability or serious disability due to a non-work-related injury and the worker is not in an assimilated contributor situation, in which case a generic contribution period of 15 years and a specific contribution period of 3 years within the last 10 years will be required.The "contribution days" are calculated to certify the minimum generic and specific contributory periods (extra payments).
Permanent disability only exists if the checking of incapacitating injuries is accompanied by the right to receive the benefit, therefore meeting the requirements established (contribution period,...).As a result, permanent disability will not be declared in any of its degrees, if the worker does not show the remaining requirements for producing the right to economic benefit.
If the worker's maximum TD period (545 days) has not run out, the days remaining will be assimilated as contribution periods in order to certify the minimum contribution period.
The 10-year period, within which a fifth of the required contribution period must be included, will be calculated from the date when the obligation to pay contributions finished.
One of the requirements for being eligible for this pension is not having reached retirement age, however:
Only contributions made for a job activity and/or contributory unemployment will be valid for these purposes. If a special agreement has be entered into, once the initial refusal decision has been issued, these contributions cannot be calculated to certify the contribution period if the worker's medical condition is identical to that upon which the EVI proposal was based.
55% of the base pension can be increased by a further 20% for workers over 55 years old, who are in a total permanent disability situation, if it is presumed, due to their age, lack of general or specialised preparation and the social and working circumstances of their place of residence, that they have problems in finding a job in an activity different to their normal one. For self-employed workers, there is an additional requirement that the pensioner is not the owner of an agricultural or maritime-fishing business or the owner, tenant, usufructuary or similar of a commercial or industrial establishment.
The substitution of the increase for housing and care at a Social Security System welfare institution upon request by the severely disabled person or any of their legal representatives can be authorised, whenever considered beneficial, and financed at their own cost (|art. 139.4 of the LGSS ).This authorisation will be the responsibility of the managing company or mutual insurance company, where appropriate, which would have been responsible for the permanent disability protection. The request for the substitution can be prepared at any time by the severely disabled person or their legal representatives, who will be able to decide with a binding effect for the managing company or mutual insurance company authorising the substitution, that the request is void.If the hospitalisation refers to welfare institutions and is passed to an Autonomous Community for management, the substitution will not take place. Article 69 of Law 21/2001 revises article 86 LGSS and authorises a separation of the financing of public welfare institutions with this responsibility passed to the Autonomous Communities, with the possibility of substitution therefore being devoid of any content.
Both pensions are compatible with carrying out such activities, whether profit-making or not or compatible with the disability condition, so long as they do not represent a change in the pensioner's ability to work which may give rise to a partial review by the management body. If the activities carried out exceed the established conditions, they will be incompatible and the pension may be suspended.If work able to be included in any Social Security Scheme is carried out, then the worker must be affiliated and pay contributions, as well as communicate the beginning of any job performed for someone else or on a self-employed basis to the National Social Security Institute, unless it is the result of an occupational disease, in which case prior authorisation will be necessary.
Receiving a total permanent disability pension is incompatible with carrying out a job in the same occupational category or group, although it is compatible with any other type of job activity in the same company or another company.However, receiving the 20% increase in the base pension of the total permanent disability is incompatible with working for someone else on a self-employed basis, or Social Security benefits that might result from such work, such as temporary disability or maternity benefit which continues after the working relationship or professional activity, or any unemployment benefit due from such work.
Any work carried out by the pensioner must be communicated to the National Social Security Institute, unless it results from an occupational disease, for which prior authorisation will be necessary.
If when they are disabled the person receiving a total permanent disability benefit loses or is suspended from a job compatible with their pensioner situation, they will be entitled to receive the unemployment benefit due to them, as well as the pension.
Irrespective of the compatibility or incompatibility which, where appropriate, may result in an activity being carried out, only the professional activity needs to be communicated to the relevant management body. However, pensioners with a permanent disability resulting from an occupational disease, will only be able to work for someone else if they have previously obtained authorisation from the INSS.
If the applicant lives outside Spain, it will be the Provincial Office of the INSS in the province where the originator establishes or alleges that the last contributions were made that will determine qualification and reviews.
Article 1 of Royal Decree 1300/95 establishes that the National Social Security Institute will be responsible for evaluating, classifying and reviewing, regardless of the Management Body (INSS or ISM ) or Collaborating Body covering the contingency in question.
It is the responsibility of the INSS to check the existence of these injuries and acknowledge the right to the relevant benefits.
The companies themselves are only authorised to begin the procedure if they collaborate in the management. In addition, they are only authorised to begin the review procedure but not the initial declaration procedure so long as they are responsible for the benefits. The three ways for beginning this recognition are: official, at the request of the worker or their representative and the request of the collaborating bodies (Mutuals for Work-related Injury and Occupational Disease Insurance or collaborating company). The official way includes, amongst other assumptions, the itemised requests of the Employment and Social Security Inspectorate whom the company may approach for this purpose.
Waivers filed by workers, are considered to be excluded from the Social Security scope of protection, since economic benefits from the system are understood to be non-waivable.In accordance with |art. 4 of R.D. 1300/1995, of 21 July, the work-related disability procedure is carried out automatically in all of its stages until completion.
The disability can be reviewed at any time and so long as the disabled person has not reached the age established for receiving the retirement pension (currently 65). As an exception to this principle, the management body can review the degree of permanent disability and, consequently, the economic benefit initially awarded if the disability results from an occupational disease, even if the individual in question is over 65 years old.